Burnett v. State

356 S.E.2d 231, 182 Ga. App. 539, 1987 Ga. App. LEXIS 2626
CourtCourt of Appeals of Georgia
DecidedMarch 18, 1987
Docket73509
StatusPublished
Cited by36 cases

This text of 356 S.E.2d 231 (Burnett v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burnett v. State, 356 S.E.2d 231, 182 Ga. App. 539, 1987 Ga. App. LEXIS 2626 (Ga. Ct. App. 1987).

Opinions

Carley, Judge.

Appellant was indicted in 1980 for three counts of violating the Georgia Controlled Substances Act. He was initially afforded representation by appointed counsel. However, appellant’s appointed counsel subsequently withdrew from the representation. At a pre-trial hearing during the October 1982 Term of the superior court, appellant appeared without legal representation and informed the court that he did not have counsel. In response to the trial court’s repeated inquiries, however, appellant stated that he was financially able to employ an attorney and that he had no desire for the appointment of counsel. He further stated that, upon the call of his scheduled trial the following January, he would be represented by retained counsel. Appellant was specifically advised that, if he could not secure counsel for his trial, “for any reason, [he was to] contact either [the assistant district attorney] or [the trial court] immediately ... so the appointment [could] be made. But if [he] waited until three or four days before trial, . . . that [would] not . . . warrant a[nother] continuance.” Appellant stated that he understood.

At the call of his trial in January of 1983, however, appellant was not represented by counsel. It was determined that appellant had not even been in contact with an attorney until a day or so prior to trial. That attorney had declined to represent appellant. Based upon appellant’s status as a non-indigent, the trial court refused to appoint counsel. Appellant was also refused additional time within which to retain counsel. Consequently, appellant was required to represent himself at his trial. The jury returned verdicts of guilty on all three counts. Appellant appeals from the judgments of conviction and sentences entered on the jury’s verdicts and from the denial of his motion for new trial.

1. The trial court’s ruling that appellant would be required to go [540]*540to trial without counsel is the subject of several related enumerations of error. Appellant urges that he had the right to be represented by counsel, which right was never waived by him.

Defendants in criminal cases have both a federal and a state constitutional right to be represented by counsel or, in the alternative, to represent themselves. However, it is only indigent defendants for whom the trial court must appoint counsel. For a non-indigent defendant, such as appellant, the constitutional right to counsel only “ ‘entitles him to be defended by counsel of his own selection whenever he is able and willing to employ an attorney and uses reasonable diligence to obtain his services.’ ” (Emphasis in original.) Shaw v. State, 251 Ga. 109, 111 (303 SE2d 448) (1983).

The constitutional right to counsel may be waived. Since no defendant has the right to simultaneous representation by counsel and self-representation, his election of the latter right is necessarily a waiver of the former. When waiver of the right to counsel rests upon the defendant’s election of his alternative right of self-representation, “the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.” (Emphasis supplied.) Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981). A defendant’s voluntary election of the alternative right of self-representation is not, however, the only circumstances in which the waiver of the right to counsel may arise. Notwithstanding a defendant’s present verbal insistence upon his right not to be tried without counsel, his own past actions may nevertheless demonstrate that the right has been waived. Since a non-indigent defendant’s right to counsel is predicated upon his own diligence, a failure on his part to retain counsel may constitute a waiver of the right to counsel. See generally Bostick v. Ricketts, 236 Ga. 304, 306 (2) (223 SE2d 686) (1976); Ward v. State, 248 Ga. 60, 65 (281 SE2d 503) (1981); Fernandez v. State, 171 Ga. App. 290, 294 (319 SE2d 503) (1984); United States v. Casey, 480 F2d 151 (5th Cir. 1973). Thus, when presented with a non-indigent defendant who has appeared for trial without retained counsel, “the trial judge [has] a duty to delay the proceedings long enough to ascertain whether [the defendant has] acted with reasonable diligence in obtaining [an attorney’s] services and whether [the] absence [of an attorney is] attributable to reasons beyond [the defendant’s] control.” Shaw v. State, supra at 112.

Turning to the case sub judice, the trial court determined some months prior to trial that appellant was not indigent and that he had no desire that counsel be appointed to represent him. Compare Stapp v. State, 249 Ga. 289 (1) (290 SE2d 439) (1982). The trial court apprised appellant of his right to appointed counsel should he be unable [541]*541to secure representation, informed him of his responsibility to request appointed counsel within a sufficient time prior to the scheduled trial date, and specifically warned him that a failure either to secure representation or to request appointment of counsel would not be grounds for another continuance of his trial. Notwithstanding appellant’s statement that he understood his rights and responsibilities regarding his representation, he appeared at his trial without having requested appointment of counsel and without any retained counsel being present. The trial court delayed the proceedings long enough to ascertain whether appellant had acted with reasonable diligence in securing representation and whether the absence of counsel was attributable to reasons beyond appellant’s control. Compare Shaw v. State, supra. The trial court was clearly authorized to find that the lack of representation was entirely attributable to appellant’s lack of diligence in retaining counsel. See generally Walker v. State, 157 Ga. App. 484 (1) (277 SE2d 740) (1981).

Appellant contends, however, that there could be no viable waiver of his right to counsel because, on the day of trial, he did not receive a warning from the trial court regarding the danger of proceeding pro se. As noted above, a showing that such a warning was made is a requirement in those cases wherein the purported waiver of the right to counsel arises from the defendant’s own voluntary invocation of his countervailing right to self-representation. Clarke v. Zant, supra. The giving of a warning of the danger of proceeding pro se would obviously be relevant to the waiver issue under those circumstances, since the issue will ultimately turn upon whether the defendant’s relinquishment of one constitutional right by the election of another is the product of an informed and valid choice on his part. Whether or not the warning has been given would have no such relevance in circumstances where a non-indigent defendant has invoked his right not to proceed to trial without counsel. In such cases, the ultimate determination of waiver does not turn upon the existence of a present informed choice by the defendant to proceed pro se. Waiver under those circumstances is solely a function of the non-indigent defendant’s own prior exercise of diligence in securing representation. Appellant certainly needed no warning of the danger of proceeding pro se. By his very invocation of the right to counsel at trial, appellant clearly understood and wished to avoid the danger of self-representation.

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Bluebook (online)
356 S.E.2d 231, 182 Ga. App. 539, 1987 Ga. App. LEXIS 2626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnett-v-state-gactapp-1987.