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Whitaker v. State

Defendant's own testimony supported the trial court's finding on remand that he knowingly and voluntarily waived his right to a jury trial.

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In Whitaker v. State, 244 Ga. App. 241 535 SE2d 283 2000 Whitaker I, we vacated the judgment of conviction in this case and remanded for an evidentiary hearing to determine whether Whitaker knowingly and intelligently waived his right to a jury trial. Id. at 243-244 4. After a hearing, the trial court found that Whitaker “did knowingly, voluntarily, and intelligently waive his right to a jury trial,” and reinstated his conviction and sentence. Whitaker appeals this determination, and we affirm.

As we noted in Whitaker I, the record below “contains some evidence of a waiver but does not show whether Whitaker personally, voluntarily, knowingly, and intelligently participated in it.” Id. at 244. As the bench trial began, the prosecutor stated, “Your Honor, the forms have been executed indicating that the defendant pleads not guilty and waives his right to a jury trial.” The form is entitled “Plea and Verdict,” was signed by Whitaker, his counsel, and the prosecutor, and includes the handwritten notation “I waive my right to a jury trial.” In addition, after denial of his motion for new trial and filing his notice of appeal Whitaker prepared and signed an affidavit in preparation for the appeal in Whitaker I, detailing his claims of ineffective assistance of counsel. At the hearing on remand, Whitaker was examined at length regarding this affidavit as well as the plea and verdict form.

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