Petition for Writ of Certiorari — Dossett v. Georgia

| Suoreme Court, Wd

81-519, FILED

han SEP 2 4 199}

inna | OFFICE OF THE “an

In The

Supreme Court of the United States

October Term, 1991

— ® —

LARRY RUSSELL DOSSETT,

Petitioner,

SUS

(THE STATE OF GEORGIA,

Respondent.

ee -@ —— —

Petition For A Writ Of Certiorari

To The Supreme Court Of The

State Of Georgia

PETITION FOR A WRIT OF CERTIORARI

—_ a — & ——————

Vircit L. BROWN

BeNTLEY C. Abas, III

Petitioner’s Attorneys

P. O. Box 388

Courthouse Square

Zebulon, Georgia 30295

(404) 567-8970

(404) 567-3013 (Fax)

(404) 525-2373 (Atlanta)

September 24, 1991

QUESTIONS PRESENTED FOR REVIEW

1. Was petitioner denied due process where he was tried

without a jury and there was no showing that he had ever

made a knowing and intelligent waiver of the right to be

tried by a jury?

2. Was the Georgia Supreme Court's finding that peti-

tioner’s right to a trial by jury was impliedly waived by

his failure to object to proceeding to trial without a jury a

prohibited ex post facto application of this procedural

requirement?

il

PARTIES TO THE PROCEEDING

The caption contains the names of all parties to this

proceeding.

ili

TABLE OF CONTENTS

Reset FREOOINIELD ... 0.5... 1. eee ese

Peeeetee 1) frie PROCEEDING ............

ee

IE ee eee

CONSTITUTIONAL PROVISIONS INVOLVED

SrAremen! OF THE CASE.................

REASONS FOR GRANTING THE WRIT .....

ao ny 4s 5 '6.y eon ce ee ee ee es

ea a 6 & s

ee ee oe

es a ee

i a

iv

TABLE OF AUTHORITIES

Page

Cases:

Baldasar v. Illinois, 446 U.S. 222 (1980)................ 8

Barrett v. State, 183 Ga. App. 729, 360 S.E.2d 400

4: need aera ie SN Nesey ds eye ae Na Re Rag gee 5

Bouie v. City of Columbia, 378 U.S. 347 (1964)......... 9

Boykin v. Alabama, 395 U.S. 238 (1969)................ 7

Campbell v. State, 128 Ga. App. 74, 195 S.E.2d 664

5) Sr ears nl nin Pan rare rs eee 8

Conlogue v. The State, 243 Ga. 141, 253 S.E.2d 168

3) cy Bee Cea erry anya te mr ini er et mary ener 8

Davis v. State, 197 Ga. App. 746, 399 S.E.2d 554

SUP RS sca Choe a es eee a eras 5

Dossett v. State, 197 Ga. App. 139, 398 S.E.2d 24...... 2

Dossett v. State, 261 Ga. 362, __—« S.E.2d ___ (1991)..... 2

Fortson v. State, 96 Ga. App. 350, 100 S.E.2d 129

CRO Pas x6 een cna se eke wee ren rae ta pee ton 7

Green v. Auston, 222 Ga. 409, 150 S.E.2d 346 (1966)..... 7

Kendall v. State, 196 Ga. App. 760, 396 S.E.2d 927

(SPE cond ova cerca caawend Ca aer ene eM iene ree: 5

Nicholson v. State, 261 Ga. 197, 403 S.E.2d 42 (1991)

EOE Mem er Teese Pe ore Tree eee 6, 7, 8, 9

Purvis v. Connell, 227 Ga. 764, 767, 182 S.E.2d 892

RUNGE cisnvks ERC RR ROPERS TERING RE ee ener S et 8

Roberts v. Greenway, 233 Ga. 473, 211 S.E.2d 764

CRN tia ew ence hy el peene ied meee ere ee eee 8

Rustin v. State, 192 Ga. App. 775, 386 S.E.2d 535

COE ct ena ence cans pues Seed ade eae Fane epee e eae 5

TABLE OF AUTHORITIES - Continued

Page

Snellings v. State, 194 Ga. App. 552, 391 S.F.2d 36

2. Beater anaes A oe akin Rett oe eae RADE BTR Net 5

White v. State, 197 Ga. App. 162, 398 S.E.2d 35

“tM Rae A Ore Ree EN ce ORs VIA, ty RR 7, 2 8

CONSTITUTIONAL PROVISIONS:

Constitution of the United States, 14th Amend-

Se ee ee ey ee Ure err rere ear arte gt P 2,8

Constitution of the United States, 6th Amendment .. .3, 8

Constitution of the United States, Art. 1,§9, Par.3..... 3

Constitution of the United States, Art. 1, § 10, Par.

RET er a art che Ara LOM aren ae emetys Aer EME EYEE 3

STATUTES:

WiGe 4 ee eee 2

aL dd 2 Oe Se Tener ere b

alee ee Ge Gk. ee leaniien a iera ena kta Ano a,

ee Ae es oo eee h

ah ae oe EL . ) Se eo eR IGN 4, 6

Court Rutes:

United States Supreme Court Rule 13(1) & (4) ....... 2

No.

>

In The

Supreme Court of the United States

October Term, 1991

s

LARRY RUSSELL DOSSETT,

Petitioner,

versus

THE STATE OF GEORGIA,

Respondent.

S

Petition For A Writ Of Certiorari

To The Supreme Court Of The

State Of Georgia

¢

PETITION FOR A WRIT OF CERTIORARI

7

Petitioner Larry Russell Dossett prays tnat the Writ of

Certiorari issue to the Georgia Supreme Court to review

the decision of the Georgia Supreme Court ertered June

26, 1991.

OPINIONS BELOW

Reproduced in the appendix to this petition are (1)

the decision of the Superior Court of Meriwether County

dated March 5, 1990, (2) the decision of the Court of

Appeals dated September 4, 1990, (3) the decision of the

Georgia Supreme Court dated May 10, 1991, (4) the June

26, 1991, order of the Georgia Supreme Court denying

petitioner’s Motion for Reconsideration, and (5) the July

3, 1991, order of the Georgia Supreme Court granting

petitioner’s Motion for Stay of the Remittitur. The Geor-

gia Court of Appeal’s decision is reported at 197 Ga. App.

139, 398 S.E.2d 24 (1990). The Georgia Supreme Court's

decision is reported at 261 Ga. 362, ___—S.E.2d ___ (1991).

¢

JURISDICTION

The jurisdiction of this court is invoked pursuant to

28 U.S.C. §1257(a) which authorizes the grant of the Writ

of Certiorari to the highest court of a state in a case where

a right, privilege or immunity is specifically claimed

under the Constitution of the United States. The Georgia

Supreme Court denied petitioner’s timely Motion for

Reconsideration on June 26, 1991. In accordance with

Rule 13(1) & (4) of this court, this petition is filed within

ninety (90) days of the entry of the Judgment of the

Georgia Supreme Court.

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Fourteenth Amend-

ment, Section 1:

All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein tney reside. No State shall make or

enforce any law which shall abridge the privi-

leges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

Constitution of the United States, 6th Amendment:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously ascer-

tained by law, and to be informed of the nature

and cause of the accusation; to be confronted

with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for

his defence.

Constitution of the United States, Article 1, §9, Para-

graph 3:

No Bill of Attainder or ex post facto Law shall

be passed.

Constitution of the United States, Article 1, §10, Para-

graph 1:

No State shall enter into any Treaty, Alliance, or

Confederation; grant Letter of Marque and

Reprisal; coin Money; emit Bills of Credit; make

any thing but gold and siler Coin a Tender in

Payment of Debts; pass any Bill of Attainder, ex

post facto Law; or Law impairing the Obligation

of Contracts, or grant any Title of Nobility.

¢

STATEMENT OF THE CASE

Larry Russell Dossett was convicted after a bench

trial of Driving While Under the Influence of Alcohol in

the Probate Court of Meriwether County on December 6,

1988. Petitioner was not advised of his right to a trial by

jury and no express waiver of the same was made by him

He appealed his conviction to the Superior Court of Mer-

iwether County which affirmed the conviction. He

appealed this decision to the Georgia Court of Appeals

contending the trial court lacked jurisdiction because of

the lack of a waiver of trial by jury. The superior court’s

decision was affirmed. He sought and obtained certiorari

from the Georgia Supreme Court on this issue. That court

in a 5 to 2 decision affirmed the Court of Appeals’ deci-

sion holding petitioner impliedly waived his right to a

trial by jury when he did not object to a trial without a

JUTY.

REASONS FOR GRANTING THE WRIT

In this case the Georgia Supreme Court applied an

unexpected and novel construction to the terms of

O.C.G.A. §40-13-23(a) which provides:

No court defined in this article shall have the

power to dispose of traffic misdemeanor cases

as provided in this article unless the defendant

shall first waive in writing a trial by jury. If the

defendant wishes a trial by jury, he shall notify

the court and, if reasonable cause exists, he shall

be immediately bound over to the court in the

county having jurisdiction to try the offense,

wherein a jury may be empaneled.

At the time of petitioner’s conviction and throughout

all but the final stage of his appeal in the state system,

this statutory provision was rigidly applied by the Geor-

gia courts as a jurisdictional prerequisite in inferior court

trials such as the one had by petitioner.

For example, in Rustin v. State, 192 Ga. App. 775, 386

S.E.2d 535 (1989), the court held a probate court's failure

to first advise a defendant of the right to a jury trial and

to obtain his written waiver of a trial in a traffic misde-

meanor case, as required by the above statute, is harmful

error requiring a reversal of a D.U.I. conviction.

In the subsequent decision in Snellings v. State, 194

Ga. App. 552, 391 S.E.2d 36 (1990), the court recognized

the written jury trial waiver as a jurisdictional prerequi-

site and held that even where a defendant orally waives a

jury trial the conviction is void unless the court obtains

the waiver in writing.

Similarly, in Davis v. State, 197 Ga. App. 746, 399

S.E.2d 554 (1990), the court held the appellant’s D.U.I.

conviction was “a mere nullity” where no written waiver

was obtained in the probate court. Importantly, the Davis

court held that although the written waiver issue had not

been raised in the superior court below this was of no

consequence. Citing Barrett v. State, 183 Ga. App. 729, 360

S.E.2d 400 (1987), the court noted “this is a matter which

goes to the subject matter jurisdiction of the probate court

and the right to attack the judgment as a nullity is not

waived by the failure to attack it before”. Id., at 747. See

also Kendall v. State, 196 Ga. App. 760, 396, S.E.2d 927

(1990).

W

CAaASOT ant OF tials line of cases was relectec

ime Dy the Georgia Supreme Court in Nichol

61 Ga. 197, 403 S.E.2d 42 (1991). on April

hile petitioner’s case was on appeal In Nichol

court granted certiorari to determine whether

tl

a | robate court to cbtain a Walver Of jury tr!

be raised for the first time in an appellate court

ncluding it could not, the court focused on the |.

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§40-13-23(a) and §40-13-21(a) and (b). By

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convoluted reasoning the court found §40-1

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23 governed jurisdiction in the probate cou

le the court reasoned because probate court

bate courts are not bound by the written waiv:

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lal requirement of 840-1 $(a) \ vith

vests misdemeanor traffic offense jurisd

bate turts only where “the defendant waiv«

there is no written waiver requirem

r this reason and because the matter is ons

e walver could be implied by a failure

K ra jyury 1 tne probDate Ourt. | |

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es omitn Bell and Benl am dissented

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in the aissent Justice Benham argued forceful

reached by the majority was contrary t

d unambiguous language contained

Db) that probate courts are without “jurisd

by t¢ fon ] +} if lay

at iC itst i] t { LCTeT iant Va

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jurisdiction of the person or subject matter, or void for

any... Cause, is a mere nullity and may be so held in any

court when it becomes material to the parties to consider

it.” (emphasis supplied).

The Nicholson majority also relied on Fortson v. State,

96 Ga. App. 350, 100 S.E.2d. 129 (1957), and Green v

Auston, 222 Ga. 409, 150 S.E.2d 346 (1966), in reaching Its

result. The reliance was misplaced

Green was not a criminal case. Hence, there was no

6th Amendment right to a trial by jury in criminal pros-

ecutions implication. Moreover, the case dealt with a

superior court trial and turned on the presence of a state

constitutional provision which actually required the par-

ties to demand a jury trial. No such provision was appli-

cable in Nicholson or in the petitioner’s case.

Fortson involved an effort by a defendant to set aside

a guilty plea on the ground that he was denied his right to

counsel. The opinion recites the defendant was offered

counsel but gave no indication that he desired an attor-

ney. Certainly, the implication of waiver is more appro-

priate in those circumstances than in Nicholson and the

matter sub judice where petitioner pled not guilty and

proceeded to trial not expressly waiving any of his rights

The record in this case does not indicate the petitioner

was at any time advised of his right to a trial by jury.

Importantly, the Georgia Supreme Court’s holding in

this case is sharply at odds with the decision of this court

in Boykin v. Alabama, 395 U.S. 238 (1969), and the subse-

quent decisions following it which have strongly disap-

proved of implied wiavers in constitutional analysis. In

Boykin this court held “after a prisoner raises the question

of the validity of his plea of guilty, the burden is on the

state to show that the plea was intelligently and volun-

tarily entered.” Coniogue v. The State, 243 Ga. 141, 141, 253

S.E.2d 168 (1979), quoting from Roberts v. Greenway, 233

Ga. 473, 211 S.E.2d 764 (1975). The record must affirma-

tively reflect that the guilty plea was made voluntarily

with understanding of the nature of the charge and the

consequences of the plea. Purvis v. Connell, 227 Ga. 764,

767, 182 S.E.2d 892 (1971). Similarly, the record must

show that the defendant was offered counsel and inte!-

ligently and understandingly rejected the offer. Anything else

is not a waiver. Purvis at 766. A knowing and intelligent

waiver is an act which can never be lightly presumed

and, indeed, the presumption is against waiver. Campbell v

State, 128 Ga. App. 74, 195 S.E.2d 664 (1973). This rule has

been consistently applied by the Georgia court to jury

trial waivers in non-traffic offense prosecutions recogniz-

ing such errors may be raised for the first time on appeal.

White v. State, 197 Ga. App. 162, 398 S.E.2d 35 (1990). This

Court has held the requirement that pleas and waivers be

knowing and intelligent applies to misdemeanors as well

as felony convictions. Baldasar v. Illinois, 446 U.S. 222

(1980).

The jury trial waiver requirement of the Georgia stat-

utory scheme would appear to be but a legislative effort

to insure records of convictions affirmatively reflect

defendants were accorded their federal and state right to

a trial by jury in criminal prosecutions as required by the

decisions of this court construing the 6th & 14th Amend-

ments to the United States Constitution. By its decision in

this case and Nicholson the Georgia Supreme Court has

frustrated that clearly expressed intention and all but

ignored the long line of cases disapproving implied

waivers in constitutional analysis.

Moreover, even assuming arguendo the Georgia

Supreme Court’s construction of the statute is correct,

due process considerations prevent the application of that

interpretation to persons such as the petitioner who were

tried before it was rendered. Accused persons should he

entitled to rely on the clear language of the statute and

the previous judicial decisions interpreting that statute in

promulgating an appeal. To apply the procedural changes

wrought by Nicholson to persons so situated violates the

fair warning requirements of the constitutional ex post

facto prohibitions contained in Article I, Sections 9 and 10

of the United States Constitution. This prohibition, by

virtue of the due process clause, bars state courts as well

legislative bodies from passing laws with retroactive

effect. See Bouie v. City of Columbia, 378 U.S. 347 (1964).

Persons such as the petitioner should therefore be

afforded another opportunity to decide if they desire a

trial by judge or jury in the inferior court.

CONCLUSION

In this case the Georgia Supreme Court literally

changed the rules on the petitioner in the middle of the

game. By its decision in this case it retroactively breathed

life into a null and void judgment of a court without

jurisdiction. Georgia’s clear and unambiguous statutory

requirement that a waiver of trail by jury be first obtained

in an inferior court before jurisdiction attaches was but a

legislative embodiment of the decisions of this court that

10

implied waivers are not acceptable in constitutional anal-

ysis. That principle was never more applicable than here

where petitioner was not advised of and did not know-

ingly and inteiligently waive his right to have his case

heard by a jury. His trial was therefore presumptively

unfair.

However, even if the Georgia Supreme Court’s con-

struction is correct, the application of this new procedural

requirement to this petitioner was wrong and violative of

the due process guarantees and ex post facto prohibitions

of the United States Constitution.

This court should grant certiorari to consider the

compelling questions of constitutional import presented

by this case.

Respectfully submitted,

Virci. L. Brown

Counsel of Record

for Petitioner

BentLey C. Apams, III

Counsel for Petitioner

P. O. Box 388

Courthouse Square

Zebulon, Georgia 30295

(404) 567-8970

App. 1

IN THE SUPERIOR COURT OF MERIWETHER COUNTY

STATE OF GEORGIA

STATE OF GEORGIA :

VS.

* CITATION

LARRY RUSSELL DOSSETT, * NO. 90783

Defendant

APPEAL FROM PROBATE COURT

The above-named Defendant was convicted and sen-

tenced on December 6, 1988 in the Probate Court of

Meriwether County of the offenses of driving under the

influence and speeding.

Following said conviction and sentencing, the Defen-

dant appealed to this Court pursuant to O.C.G.A.

§ 40-13-28.

Said case came on for hearing and opportunity was

afforded for submission of briefs. None have been sub-

mitted.

In accordance with the directions set forth in Ander-

son v. City of Alpharetta, 187 Ga. App. 148 (1988) in con-

nection with appeals pursuant to O.C.G.A. § 40-13-28,

this Court has reviewed the record and transcript of the

proceedings below. Based on said review, this Court finds

that there is sufficient evidence to support the convictions

and sentence. Further, the Defendant, has asserted no

errors in the proceedings below, and this Court finds

none.

Accordingly, the findings of guilt as to the offenses of

driving under the influence and speeding and the sen-

tences imposed thereon are hereby adopted and affirmed

This 5th day of March, 1990.

Allen B. Keeble

ALLEN B. KEEBLE

JUDGE OF SUPERIOR COURT

MERIWETHER COUNTY, GEORGIA

App. 3

BANKE, PJ.

BIRDSONG & COOPER, JJ.

SEP 4 1990

In the Court of Appeals of Georgia.

A90A1322. DOSSETT v. THE STATE. BA-64C.

BANKE, Presiding Judge.

The appellant was convicted in the Probate Court of

Meriwether County of driving under the influence of

alcohol. His conviction was affirmed on appeal to the

superior court pursuant to OCGA § 40-13-28, and this

appeal followed. Held:

1. The evidence was sufficient to enable a rational

trier of fact to find the appellant guilty of driving under

the influence of alcohol beyond a reasonable doubt. See

generally Jackgon v. Virginia, 443 U.S. 307 (99 SC 2781, 61

LE2d 560) (1979).

2. The appellant contends that the probate court

was without power to try him for the offense because it

failed to obtain from him a written waiver of his right to

trial by jury in accordance with OCGA § 40-13-23 (a). See

Rustin v. State, 192 Ga. App. 775 (2) (369 SE2d 521) (1989).

However, inasmuch as the case is before us on appeal

from the judgment of the superior court, our inquiry is

confined to whether that court erred in affirming the

conviction. As there is no suggestion that the waiver-of-

jury-trial issue was raised in the superior court, we must

conclude that it was not preserved for review in the

present appeal and is not properly before us.

App. 4

3. The appellant further argues that the superior

court judge was without authority to render a decision in

the case because he “holds one of the judgeships which

were ruled to have been illegally created in violation of

Section 5 of the Voting Rights Act.” However, there is

nothing in the record to support any element of this

assertion, nor does the record contain any suggestion that

this issue was raised in the superior court. Consequently,

it presents nothing for review on appeal. See generally

Moore v. State, 181 Ga. App. 548, 549 (2) (352 SE2d 821)

(1987).

Judgment affirmed. Birdsong and Cooper, ]]., concur

App. 5

In the Supreme Court of Georgia

Decided: MAY 10 1991

591G0120. DOSSETT v. THE STATE

PER CURIAM.

Appellant was convicted in probate court of driving

under the influence of alcohol. He appealed that convic-

tion to superior court, which affirmed. On appeal to the

Court of Appeals, appellant argued that the probate

court’s judgment was void because there was no written

waiver of jury trial. The Court of Appeals held that the

issue had been waived by appellant’s failure to raise it in

the superior court, and affirmed his conviction. Dossett v.

State, 197 Ga. 139(2) (398 SE2d 24) (1990). We granted

certiorari to consider whether the absence from the

record of a waiver of jury trial in probate court can be

raised in an appellate court if not first raised in superior

court.

This case is controlled by Nicholson v. State, Case No.

S91G0119, decided April 10, 1991. Under the holding of

that case, Dossett’s failure to raise in the probate court the

issue of the absence of a waiver of jury trial prevents

appellate review of the issue. The implication in the

Court of Appeals’ opinion in this case that a defendant

may preserve this issue by raising it in the superior court

is inconsistent with our opinion in Nicholson v. State, and

is disapproved.

Judgment affirmed. All the Justices concur, except Smith,

P. J. and Benham, J., who dissent.

A p p 6

S91G0120. DOSSETT v. THE STATE

BENHAM, Justice, dissenting.

For the reasons stated in my dissent in Nicholson v

State, S91G0119, decided April 10, 1991, I respectfully

dissent to the judgment in this case.

| am authorized to state that Presiding Justice Smith

joins in this dissent.

App. 7

SUPREME COURT OF GEORGIA

ATLANTA JUNE 26, 1991

The Honorable Supreme Court met pursuant to

adjournment. The following order was passed:

Case No. $91G0120

LARRY RUSSELL DOSSETT V. THE STATE

Upon consideration of the Motion for Reconsidera-

tion filed in this case, it is ordered that it be hereby

denied.

All the Justices concur, except Smith, PJ., and

Benham, J., who dissent.

SUPREME COURT OF THE

STATE OF GEORGIA

Clerk’s Office, Atlanta

I certify that the above is a

true extract from the minutes of

the Supreme Court of Georgia.

Witness my signature and the

seal of said court affixed the day

and year last above written.

Joline B. Williams, Clerk.