Public-domain · open source
OpenJurist

128 Ga. App. 581

197 S.E.2d 380

Brumbalow v. State

Court of Appeals of Georgia

Decided February 19, 1973

Court of Appeals of Georgia · decided 1973-02-19

Key passage — most relied on by later courts

““Whether one accused of crime who has regularly waived a jury trial will be permitted to withdraw the waiver and have his case tried before a jury is ordinarily within the discretion of the trial court. The rule, as expressed in some cases, is that if an accused’s application for withdrawal of waiver is made in due season so as not to substantially delay or impede the cause of justice, the trial court should allow the waiver to be withdrawn. “The authorities are uniformly to the effect that a motion for withdrawal of waiver made after the commencement of the trial is not timely and should not be allowed. Whether a motion for the withdrawal of a waiver of trial by jury made prior to the actual commencement of the trial of the case is timely depends primarily upon the facts and circumstances of the individual case. Where there is no showing that granting the motion irould unduly delay the trial or would otherwise impede justice, the motion is usually held to be timely. In some cases, however, it has been held that a motion for withdrawal of a waiver of jury trial, although made prior to the trial, was not timely and was properly denied by the trial court, the decisions in these cases being based primarily upon the ground that granting the motion would have resulted in an unreasonable delay of the trial.” (Emphasis added, footnotes omitted)”

quoted by 1 later decision, including Thomas v. Commonwealth

Relies on Cain v. State · Brown v. State · 113 Ga. App. 377 - Stansell v. Fowler

Good law ✅— No negative treatment on recordhow we know

Decided 1973-02-19

How this case has been cited

Cited by 9 later decisions — most recently June 1997

9 state decisions

40197319801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Deen, Judge.

¶1 An accusation was brought against the defendant for driving while intoxicated and with license revoked. On September 15, 1972, he filed a plea of not guilty "and agrees to try before court without jury on November 9, 1972.” Subsequently, a written demand for jury trial was made dated October 25 and filed for record October 30. The trial court *582 refused the demand, tried the case without a jury, and the defendant appeals from his conviction and sentence on this ground. Held:

Submitted February 5, 1973 Decided February 19, 1973 Rehearing denied March 21, 1973.

¶2 "The right of trial by jury in criminal prosecutions is a great constitutional right of which the accused cannot be deprived except of his own accord. While he may voluntarily waive it, yet he may revoke such waiver by making timely application therefor. This right of revocation must be exercised in such season as not substantially to delay or impede the cause of justice.” Cain v. State, 102 Ga. 610, 612 (29 SE 426), and see to the same effect Brown v. State, 89 Ga. 340 (15 SE 462); Wilson v. State, 60 Ga. App. 641 (4 SE2d 688). "' If the statute sets no time limit within which the demand [for jury trial] must be made, it may be made at any time before the case is called for trial, or upon the call for trial. [Cit.] One Hour Valet of Peachtree v. Kamor, 103 Ga. App. 618, 621 (120 SE2d 130).” Stansell v. Fowler, 113 Ga. App. 377, 381 (147 SE2d 793). It does not appear from the record here that the revocation of the waiver of demand for jury trial was opposed by the state or that it would have substantially delayed the cause of justice. Whether or not a jury was available on Thursday, November 9, also does not appear, but a new term of court in Forsyth County commenced by operation of law on the following Monday, November 13, and it may be assumed that there would be a regularly convened jury at least by this four-day period. Since the right to revoke the waiver is subject only to proof of special circumstances showing that its exercise would "substantially delay or impede the cause of justice,” and no such proof appears, the judgment of conviction must be reversed.

¶3 Judgment reversed.

Bell, C. J., and Quillian, J., concur. *583 Darryl R. Vandeford, for appellant. C. B. Holcomb, District Attorney, for appellee.
/128/gaapp/581 · .json · Public domain