Wheeler v. State, 8 Div. 103
Decision Date | 21 July 1989 |
Docket Number | 8 Div. 103 |
Parties | Clarkton WHEELER v. STATE. |
Court | Alabama Court of Criminal Appeals |
Joseph W. Propst II, Decatur, for appellant.
Don Siegelman, Atty. Gen., and Beth Jackson Hughes, Asst. Atty. Gen., for appellee.
The appellant was indicted by a Morgan County grand jury for assault in the second degree, in violation of § 13A-6-21, Code of Alabama (1975). The appellant, who conducted his own defense, was convicted in a jury trial of the offense charged, and was sentenced under the Split Sentence Act to a term of 41 years' imprisonment, with one year to be spent in the state penitentiary, and the remainder of his sentence to be suspended. He raises 2 issues in this appeal of his conviction.
The appellant first argues that the record fails to show that he knowingly and intelligently waived his right to counsel. He therefore contends that the trial court erred by allowing him to act pro se in the trial of his case.
The record shows that, on March 27, 1987, the appellant, without counsel, appeared in open court for his arraignment. At this time, the trial court denied appellant's request for appointment of counsel, but continued this case to permit him to retain an attorney. In May 1987, appellant appeared at his arraignment with retained counsel, waived the reading of the indictment, and entered a plea of not guilty. However, shortly thereafter, the appellant's attorney filed a motion to withdraw from this case, citing, as grounds, a breach of their employment contract by the appellant. The court thereupon granted counsel's motion.
On March 22, 1988, the court notified the appellant by letter that his trial had been set for May 11, 1988. The court also noted in this correspondence that the appellant had no attorney of record in this case, and urged him to immediately retain counsel if he wished to be represented at trial. On May 16, 1988, the date on which his trial began, the appellant again appeared without an attorney, and renewed his request for court-appointed counsel, 1 which the court denied. The case then proceeded to trial, and the appellant conducted his own defense.
Project: Criminal Procedure, 76 Geo.L.J. 921, 928-930 (1988) (footnotes omitted) (emphasis supplied). See also 2 La Fave and Israel, Criminal Procedure, § 11.3(c) (1984), which suggests that, where a defendant has failed to obtain counsel despite the repeated advice of the court to do so, the defendant has "forfeited," and not "waived," his right to counsel.
In the case sub judice, the trial court initially delayed the appellant's arraignment so that he could hire an attorney to represent him. Again, approximately 90 days prior to the appellant's trial, the court by letter exhorted him to retain counsel. Moreover, the case action summary indicates that, when the case was called for trial and the appellant appeared again without counsel, the trial court advised him to retain counsel. Cf. Jenkins v. State, 482 So.2d 1315, 1317 (Ala.Cr.App.1985) ( ). The appellant, however, apparently had no intention of spending his own money in the furtherance of his defense. 2
...
To continue reading
Request your trial-
Buice v. State
...be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof. Wheeler v. State, 553 So.2d 652 (Ala.Cr.App.1989); Dixon v. State, 476 So.2d 1236 (Ala.Cr.App.1985). An issue raised for the first time on appeal is not correctly before this......
-
Harris v. State
...repeated urging by the court or [that the appellant] discharge[d] counsel in midtrial after explicit warnings."' Wheeler v. State, 553 So.2d 652, 653 (Ala.Cr.App.1989) (emphasis omitted). There was no showing that the appellant, having the financial ability to retain counsel, `forfeited' he......
-
Goodwin v. State
...motion setting out the specific grounds in support thereof." Buice v. State, 574 So.2d 55, 57 (Ala.Crim.App.1990); Wheeler v. State, 553 So.2d 652 (Ala.Crim.App.1989). An issue raised for the first time on appeal is not properly before this court. Buice. Therefore, this issue has not been p......
-
Peake v. State
...to retain counsel after repeated urging by the court or discharges counsel in midtrial after explicit warnings.” ’ Wheeler v. State, 553 So.2d 652, 653 (Ala.Crim.App.1989), quoting Project: Criminal Procedure, 76 Geo. L.J. 921, 928–30 (1988) (emphasis omitted). Here, however, not only was t......