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Overcash v. State

The defendant's speeding conviction was reversed, since the check mark on the arraignment form indicating a request for a non-jury trial did not clearly show that the defendant actually waived his right to a jury trial by making the check mark himself, or that that any waiver was knowing, intelligent and voluntary.

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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 state 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. at 575 1 “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.

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