Presnell v. State

284 S.E.2d 106, 159 Ga. App. 598, 1981 Ga. App. LEXIS 2994

Opinion

Sognier, Judge.

Presnell appeals his conviction for escape from confinement and motor vehicle theft.

Appellant enumerates as error the trial court’s action in empaneling a jury and proceeding with trial when appellant was not formally arraigned and refused specifically to waive such arraignment. The trial court ordered appellant to enter a plea over his objection that he had not been given the three day notice of arraignment required by Code Ann. § 27-1401. In a recent case with an identical factual situation, we reversed and held: “Although that Code section provides as a general rule that the appearance and entering of a plea is to be deemed a waiver of the notice requirement, defense counsel in this case expressly invoked his client’s right to the notice and stated that she did not intend by entering a plea to waive that right. The state’s argument that the appellant had previously waived arraignment is not supported by the record.” Hicks v. State, 145 Ga. App. 669 (244 SE2d 597) (1978). As the factual situation in the instant case is identical to that found in Hicks, we are bound by that decision.

The remaining enumerations of error need not be considered, as such alleged errors are unlikely to occur in a retrial.

Judgment reversed.

Shulman, P. J., and Birdsong, J., concur.