Westmoreland v. CITY OF HARTSELL, 500 So. 2d 1327 (Ala. Crim. App. 1986). · Go Syfert
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Westmoreland v. CITY OF HARTSELL, 500 So. 2d 1327 (Ala. Crim. App. 1986). Cases Citing This Book View Copy Cite
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cited 4× by 4 distinct cases, 1991–2018 · 2 courts · …a waiver of counsel can only be effectuated when the defendant asserts a 'clear and unequivocal' right to self-representation. ✓ Topic ↗
22 citation events (11 in the last 25 years) across 2 distinct courts.
Strongest positive: T.L.B. v. State of Alabama (Appeal from Morgan Circuit Court: CC-18-1562 and CC-18-1563) (alacrimapp, 2025-05-02)
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Top citers, strongest first. 8 distinct citers. How cited ↗
discussed Cited as authority (rule) T.L.B. v. State of Alabama (Appeal from Morgan Circuit Court: CC-18-1562 and CC-18-1563)
Ala. Crim. App. · 2025 · confidence medium
McCann, 317 U.S. 269, 279 , 63 S.Ct. 236 , 87 L.Ed. 268 (1942)). 'If the record is not clear as to the defendant's waiver and request of self-representation, the burden of proof is on the State.' Tomlin v. State, 601 So. 2d 124, 128 (Ala. 1991) (citing Carnley, 369 U.S. at 517 , 82 S.Ct. 884 ). 'A waiver of counsel can only be effectuated when the defendant asserts a "clear and unequivocal" right to self- representation.' 601 So. 2d at 128 (quoting Westmoreland v. City of Hartselle, 500 So. 2d 1327, 1328 (Ala. Crim.
discussed Cited as authority (rule) Peake v. State
Ala. Crim. App. · 2015 · confidence medium
We stated: “‘“A waiver of counsel can only be ‘effectuated when the defendant asserts a clear and unequivocal’ right to self-representation.” Westmoreland v. City of Hartselle, 500 So.2d 1327, 1328 (Ala.Crim.App.1986), citing Faretta, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 .
discussed Cited as authority (rule) Kennedy v. State
Ala. Crim. App. · 2015 · confidence medium
Our courts have interpreted Faret-ta as requiring a defendant ‘to “clearly and unequivocally” invoke his or her right of self-representation, See, e.g., Tomlin v. State, 601 So.2d at 128 (“ ‘A waiver of counsel can only be effectuatéd when the defendant asserts a “clear and unequivocal” right to self-representation.’ Westmoreland v. City of Hartselle, 500 So.2d 1327, 1328 (Ala.Cr.App.1986), citing Faretta, 422 U.S. 806 , 95 S.Ct. 2525 .”).
discussed Cited as authority (rule) Thomas v. State
Ala. Crim. App. · 2008 · confidence medium
This Court reversed the trial court’s order, holding as follows: “ ‘ “A waiver of counsel can only be ‘effectuated when the defendant asserts a clear and unequivocal’ right to self-representation.” Westmoreland v. City of Hartselle, 500 So.2d 1327, 1328 (Ala.Crim.App.1986), citing Faretta, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 .
discussed Cited as authority (rule) Anderson v. State
Ala. Crim. App. · 2007 · confidence medium
The defendant ‘should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” ’ Faretta, 422 U.S. at 835 , 95 S.Ct. at 2541 (other citations omitted).” See also Coughlin v. State, 842 So.2d 30, 33-35 (Ala.Crim.App.2002); Westmoreland v. City of Hartselle, 500 So.2d 1327, 1328 (Ala.Crim.App.l986)(a waiver of counsel can be effectuated only when the defendant asserts a “clear and unequivocal” right to self-representation); Pratt v. State, 851 So.2d 142, 144 (Ala.…
discussed Cited as authority (rule) Baker v. State
Ala. Crim. App. · 2005 · confidence medium
The Supreme Court in Carnley v. Cochran, 369 U.S. 506, 516-17 (1962), held that when the record clearly shows that a defendant has expressly waived his right to counsel, the burden of proving that his waiver was not made knowingly and intelligently is on the defendant. `A waiver of counsel can only be effectuated when the defendant asserts a "clear and unequivocal" right to self-representation.' Westmoreland v. City of Hartselle, 500 So.2d 1327, 1328 (Ala.Cr.App. 1986), citing Faretta, 422 U.S. 806 .
discussed Cited "see, e.g." McLeod v. State (2×)
Ala. Crim. App. · 1990 · signal: see, e.g. · confidence low
See, e.g., Westmoreland v. City of Hartselle , 500 So.2d 1327 (Ala.Cr.App. 1986); Leonard v. State , 484 So.2d 1185 (Ala.Cr.App. 1985).
discussed Cited "see, e.g." Teske v. State
Ala. Crim. App. · 1987 · signal: compare · confidence low
Compare Westmoreland v. City of Hartselle , 500 So.2d 1327 (Ala.Cr.App. 1986) (wherein the court recognized that the burden rests with the State if the record is silent as to a waiver of counsel); Dueitt v. State , 44 Ala. App. 22 , 201 So.2d 405 (1967) (wherein the court held that the prosecution has the burden to establish waiver of the Fifth Amendment right to counsel).
Retrieving the full opinion text from the archive…
Conley Westmoreland
v.
City of Hartsell.
Court of Criminal Appeals of Alabama.
Nov 25, 1986.
500 So. 2d 1327
1986 Ala. Crim. App. LEXIS 7338
John Zingarelli, Decatur, for appellant. Page 1328 Michael E. Sparkman, Hartselle, for appellee.
Taylor.
Cited by 22 opinions  |  Published

Appellant Conley Westmoreland was charged with driving under the influence, attempting to elude police, illegal possession of prohibited liquor, and resisting arrest. He was found guilty of these offenses, and then appealed to the circuit court for a trial de novo. The circuit court found him guilty. He was sentenced to serve a total of two years and ten days in jail and fined $1,250 and court costs. On appeal he asserts denial of the constitutional right to counsel.

At 11:30 p.m., January 28, 1986, a police officer for the city of Hartselle noticed the appellant's car being erratically driven on Highway 31. The officer had been advised by his dispatcher to be on the alert for a car described as matching appellant's. The officer attempted to stop the car, but the driver would not pull over. A highspeed chase ensued for thirty minutes, ending when the pursuer, assisted by a Morgan County deputy sheriff, forced the pursued to pull over. The officer tried to grab the appellant, who was the driver of the automobile, who thereupon placed his car in gear and jammed into the sheriff's car behind him and subsequently drove his car into a ditch. He was arrested.

I
The appellant asserts that the circuit court erred to reversal when it did not advise him of his right to counsel or appoint counsel to represent him. There was no inquiry whether appellant was represented by counsel, whether or not he could afford to hire counsel, or whether he desired to have an attorney appointed to represent him. He was not asked if he desired to waive counsel, nor told that there was a good likelihood that he would be deprived of his freedom if convicted. The record shows no waiver by the appellant of his right to counsel; it is utterly silent as to the entire matter of counsel.

The right to counsel in criminal prosecutions is guaranteed by the Sixth Amendment of the United States Constitution. This right is applicable to state proceedings by virtue of the fourteenth amendment. Gideon v. Wainwright, 372 U.S. 335,83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The United States Supreme Court has mandated that the Sixth Amendment right, set forth in the Constitution and held applicable to state prosecutions inGideon, supra, is to be applied in any trial involving a possible deprivation of liberty. Argersinger v. Hamlin,407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); 2 LaFave Israel Criminal Procedure, § 11.2 (1984).

As stated by the Supreme Court:

"We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." Argersinger, 407 U.S. at 37, 92 S.Ct. at 2012.

"However, on misdemeanor charges the right to counsel is limited to cases where a defendant is actually sentenced to jail. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158,99 S.Ct. 1158, 59 L.Ed.2d 383 (1979)." Lake v. City of Birmingham,390 So.2d 36, 38 (Ala.Cr.App. 1980); Lacey v. State, 450 So.2d 472 (Ala.Cr.App. 1984).

The state must prove that the accused has waived the right to counsel, if in fact that is contended. Brewer v. Williams,430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424, rehearing denied,431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 240 (1977). A waiver of counsel can only be effectuated when the defendant asserts a "clear and unequivocal" right to self-representation. Farettav. California, 422 U.S. 806, 95 S.Ct. 2525, 43 L.Ed.2d 562 (1975); 21A Am. Jr.2d, Criminal Law, § 759, p. 198 (1981). Once the defendant has asserted the right of self-representation, the record should show that the defendant is aware of the dangers and disadvantages of trial without representation.Faretta, supra; Raulerson v. Wainwright, 732 F.2d 803, 808 (11th Cir. 1984); Hance v. Lant, 696 F.2d 940, 946 *Page 1329 (11th Cir. 1983). The failure of the defendant to request counsel cannot be used as grounds to support a waiver.Brewer, supra; Brown v. Wainwright, 665 F.2d 607 (5th Cir. 1982). "If an accused waives his right to counsel, that waiver must be intelligently and understandingly made and cannot be presumed from a silent record. Carnley v. Cochran,369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962)." Lake v. Cityof Birmingham, 390 So.2d at 38.

In the instant case, the state has adduced no evidence of the appellant's waiver of counsel. The court stated that the appellant did not request counsel. However, standing alone, this has been held constitutionally insufficient to prove a knowing and intelligent waiver of counsel. The record is void of any advice or admonition to the appellant concerning the dangers and disadvantages of trial without counsel. From a silent record, we cannot presume a knowing and intelligent waiver of his right to counsel. We are mandated to follow the law as set forth by the United States Supreme Court. The conclusion is inescapable that this appellant's constitutional protection was denied him. We reverse and remand this case to the trial court for further proceedings not inconsistent herewith.

REVERSED AND REMANDED.

All the Judges concur.