Malak v. State

363 S.E.2d 824, 185 Ga. App. 313, 1987 Ga. App. LEXIS 2489

• Court: Court of Appeals of Georgia
• Decided: December 1, 1987
• Docket: 75166
• Status: Published

Opinion

Sognier, Judge.

Appellant was convicted in a bench trial of misdemeanor theft by taking, and he appeals pro se. Appellant enumerates error on the general grounds, denial of his motion to sever, and denial of his right to trial by jury. However, he specified that no transcript be included in the record on appeal. Further, there is nothing in the record itself indicating that appellant filed a motion to sever, and nothing to indicate whether appellant did or did not waive trial by jury.

1. The State’s motion to dismiss the appeal is denied.

2. In the absence of a transcript, we cannot consider enumerations of error based on the evidence or proceedings at trial. White v. State, 174 Ga. App. 531, 532 (2) (330 SE2d 760) (1985). In regard to denial of appellant’s right to a trial by jury, appellant was tried without a jury and it is presumed that the trial judge acted properly when acting within her legitimate sphere. Thomas v. State, 174 Ga. App. 560 (1) (330 SE2d 777) (1985). Thus, we must presume that appellant was advised of his right to a trial by jury and that he waived that right.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur. Decided December 1, 1987 Rehearing denied December 15, 1987. Mohamad Malak, pro se. James L. Webb, Solicitor, E. Duane Cooper, Assistant Solicitor, for appellee.