Overcash v. State

Court of Appeals of Georgia

Overcash v. State

745 S.E.2d 286, 322 Ga. App. 372, 2013 Fulton County D. Rep. 2022, 2013 WL 3067588, 2013 Ga. App. LEXIS 518

CourtCourt of Appeals of Georgia

DecidedJune 20, 2013

DocketA13A0627

StatusPublished

Cited by2 cases

This text of 745 S.E.2d 286 (Overcash 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

Overcash v. State, 745 S.E.2d 286, 322 Ga. App. 372, 2013 Fulton County D. Rep. 2022, 2013 WL 3067588, 2013 Ga. App. LEXIS 518 (Ga. Ct. App. 2013).

Pincite

Opinion

McFadden, Judge.

At a bench trial at which he represented himself, Ernest Arthur Overcash was convicted of speeding. He appeals the conviction, arguing that the record does not show that he voluntarily, knowingly, and intelligently waived his right to a jury trial. We agree and therefore reverse his conviction.

“Because the right to a jury trial is a fundamental constitutional right, the burden is on the [sjtate to show that [Overcash] made a knowing, intelligent and voluntary waiver of that right.” Balbosa v. State, 275 Ga. 574, 575 (1) (571 SE2d 368) (2002) (citations omitted). The state argues that it has satisfied its burden by showing that Overcash indicated by check mark on the arraignment form a request for a nonjury trial. This document does not satisfy the state’s burden. It is not clear from this document that Overcash himself made the check mark, and it certainly is not clear that any waiver was knowing, intelligent and voluntary. Compare id. (“To ensure that [defendant] waived his right to a jury trial voluntarily, knowingly and intelligently, the trial court should have conducted a colloquy with [defendant] himself.”) (citation omitted); Jones v. State, 294 Ga. App. 169, 169-170 (1) (670 SE2d 104) (2008) (written pleading filed by attorney requesting nonjury trial insufficient in absence of any extrinsic evidence).

A harmless-error analysis cannot be applied to the issue of a waiver of the right to a jury trial. Balbosa, 275 Ga. at 575-576 (2). We therefore reverse Overcash’s conviction. Ealey v. State, 310 Ga. App. 893, 899 (714 SE2d 424) (2011). “Because our review of the evidence . . . shows that it was sufficient to support [Overcash’s] conviction[ ], he may be retried.” Id. at 894. We do not address Overcash’s remaining enumerations of error since they are not likely to recur on retrial.

Judgment reversed.

Doyle, P. J., and Boggs, J., concur. Amy E. Smith, Solicitor-General, for appellee.

Free access — add to your briefcase to read the full text and ask questions with AI

McFadden, Judge.

At a bench trial at which he represented himself, Ernest Arthur Overcash was convicted of speeding. He appeals the conviction, arguing that the record does not show that he voluntarily, knowingly, and intelligently waived his right to a jury trial. We agree and therefore reverse his conviction.

“Because the right to a jury trial is a fundamental constitutional right, the burden is on the [sjtate to show that [Overcash] made a knowing, intelligent and voluntary waiver of that right.” Balbosa v. State, 275 Ga. 574, 575 (1) (571 SE2d 368) (2002) (citations omitted). The state argues that it has satisfied its burden by showing that Overcash indicated by check mark on the arraignment form a request for a nonjury trial. This document does not satisfy the state’s burden. It is not clear from this document that Overcash himself made the check mark, and it certainly is not clear that any waiver was knowing, intelligent and voluntary. Compare id. (“To ensure that [defendant] waived his right to a jury trial voluntarily, knowingly and intelligently, the trial court should have conducted a colloquy with [defendant] himself.”) (citation omitted); Jones v. State, 294 Ga. App. 169, 169-170 (1) (670 SE2d 104) (2008) (written pleading filed by attorney requesting nonjury trial insufficient in absence of any extrinsic evidence).

A harmless-error analysis cannot be applied to the issue of a waiver of the right to a jury trial. Balbosa, 275 Ga. at 575-576 (2). We therefore reverse Overcash’s conviction. Ealey v. State, 310 Ga. App. 893, 899 (714 SE2d 424) (2011). “Because our review of the evidence . . . shows that it was sufficient to support [Overcash’s] conviction[ ], he may be retried.” Id. at 894. We do not address Overcash’s remaining enumerations of error since they are not likely to recur on retrial.

Judgment reversed.

Doyle, P. J., and Boggs, J., concur. Amy E. Smith, Solicitor-General, for appellee.

Cite This Page — Counsel Stack

Bluebook (online)

745 S.E.2d 286, 322 Ga. App. 372, 2013 Fulton County D. Rep. 2022, 2013 WL 3067588, 2013 Ga. App. LEXIS 518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/overcash-v-state-gactapp-2013.

Opinion

Related

Cite This Page — Counsel Stack