Griggs v. The State., 159 Ga. App. 219, 283 S.E.2d 77 (1981)

Georgia Court Of Appeals

Status: DECIDED

Docket Number: 61662

Parts: POPE, Judge.

Linked as:

Summary

Judgment affirmed. Quillian, C. J, and McMurray, P. J., concur.

Summary

Judgment affirmed. Quillian, C. J, and McMurray, P. J., concur.

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Stanley H. Nylen, for appellant.

Clarence Angelo Griggs was convicted of robbery following a bench trial. On appeal he contends that the trial court erred in denying his motion for new trial because (1) he did not intelligently waive his right to a trial by jury and (2) he was denied effective assistance of counsel.

Do you understand that under the Constitution you are entitled to a jury trial? The Defendant: Right. The Court: And are you freely and voluntarily giving up this right to a jury trial? The Defendant: Yes. The Court: Now, you understand if you want a jury trial, that we will have one for you? Do you understand that? The Defendant: Yes, sir. The Court: But you want to go ahead without one, is that right? The Defendant: Yes, sir."

Appellant suggests that a better procedure would have been for the trial court to first determine whether he understood his constitutional rights and then determine whether he freely and voluntarily waived his right to a jury trial. " 'Although a jury trial may constitutionally be waived, the defendant must personally and intelligently participate in the waiver. [Cit.] However, defendant's consent need not be in a particular, ritualistic form . . . Since form is unimportant, the only real issue is whether (appellant) intelligently agreed to a trial without jury in this case.' " Johnson v. State, 157 Ga. App. 155 (1) (276 SE2d 667) (1981), citing Little v. Smith, 347 FSupp. 427, 428 (N. D. Ga. 1971). The evidence at trial showed that appellant expressly and intelligently waived his right to a jury trial. The record does not disclose any attempt by appellant to withdraw his waiver. Fleming v. State, 139 Ga. App. 849 (2) (229 SE2d 800) (1976). "If the Court thought proper, in the exercise of its judgment, to give more weight and credit to the statement contained in the affidavit of [appellant's trial counsel], when taken in connection with the proceedings had at the trial, apparent on the face of the record then before the Court, than to the statements contained in the other affidavits, it was its province to do so, and this Court cannot say that there was not sufficient evidence to support that judgment, and will not, therefore, interfere with it." Massey v. Allen, 232 Ga. 727 (6) (208 SE2d 798) (1974).

Lewis R. Slaton, District Attorney, Joseph J. Drolet, A. T. Jones, Benjamin H. Oehlert, III, Assistant District Attorneys, for appellee.