244 GA 33 - Burney v. State

How this case has been cited

Cited by 63 later decisions (1 by the Supreme Court) — most recently May 2023 · most notably McKaskle v. Wiggins (1984), Hance v. State (1980)

62 state decisions

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.

*41Jordan, Justice,

¶1concurring specially.

¶2I do not agree with the conclusion of the majority opinion in Division 2 that a criminal defendant has the right to counsel and at the same time the right to represent himself. I would adhere to the opinion of this court in Krist v. Caldwell, 230 Ga. 536 (198 SE2d 161) (1973) holding that a defendant who chooses to be represented by counsel waives the "correlative right to represent himself.” This holding is in accord with the majority view in the United States and is consonant with the language in our Constitution. The use of the word "both” does not demand a finding that it means "both” at the same time. To allow a defendant to have counsel appointed to represent him and at the same time allow him to represent himself is entirely inconsistent with the orderly procedure of a trial. See Heard v. State, 126 Ga. App. 62, 65 (189 SE2d 895) (1972). A defendant cannot "have his cake and eat it too.”

¶3I do not believe that the writers of the Constitution intended that this provision of the Constitution should be interpreted as the majority opinion holds. Since I agree that the error, if any, was harmless, I concur in the judgment of affirmance.

¶4I am authorized to state that Chief Justice Nichols and Justice Hall join in this special concurrence.