O.C.G.A.
O.C.G.A.

O.C.G.A. § 40-13-23 (2019)

Waiver of jury trial; withdrawal of waiver

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) No court defined in this article shall have the power to dispose of traffic misdemeanor cases as provided in this article unless the defendant shall first waive in writing a trial by jury. If the defendant wishes a trial by jury, he shall notify the court and, if reasonable cause exists, he shall be immediately bound over to the court in the county having jurisdiction to try the offense, wherein a jury may be impaneled. Where a cash bond, property bond, or driver’s license in lieu of bond has been posted, the bond shall be transferred to the court assuming jurisdiction, and the defendant shall not be required to post a new bond by the court assuming jurisdiction. (b) No waiver of a trial by jury may be withdrawn when such waiver has been interposed for the purpose of delay. Except with approval of the court, no waiver of a trial by jury may be withdrawn after the commencement of the trial or the filing of motions on behalf of the defendant, whichever comes first.

History

(Ga. L. 1937-38, Ex. Sess., p. 558, § 4; Ga. L. 1985, p. 149, § 40; Ga. L. 1987, p. 329, § 1; Ga. L. 1992, p. 2785, § 29; Ga. L. 1996, p. 1279, § 1.)

Annotations

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1996, a comma

was inserted following ‘‘property bond’’ in the third sentence of subsection (a).

JUDICIAL DECISIONS Written waiver required. - Language of O.C.G.A. § 40-13-23 is clear and unambiguous: without a written waiver of trial by jury, the probate court is without authority to proceed to disposition of the case. An oral waiver at a recorded hearing is not sufficient compliance with the statute. Snellings v. State, 194 Ga. App. 552, 391 S.E.2d 36 (1990), but see Nicholson v. State, 261 Ga. 197, 403 S.E.2d 42 (1991). When a review of the record reveals that the appellant did not sign the jury trial waiver, the probate court was without authority to dispose of the case. Even though there is no indication that the waiver-of-jury-trial issue was raised in the superior court, this is a matter which goes to the subject matter jurisdiction of the probate court and the right to attack the judgment as a nullity is not waived by the failure to attack the judgment before. Davis v. State, 197 Ga. App. 746, 399 S.E.2d 554 (1990), but see Nicholson v. State, 261 Ga. 197, 403 S.E.2d 42 (1991). Waiver of jury in recorder’s court. - When no evidence appeared indicating

the defendant’s objection to proceeding without a jury on a prior charge of driving under the influence tried in the recorder’s court, the defendant waived the right to a jury trial on that charge, and the trial court did not err by considering the valid prior judgment in sentencing the defendant as a third-time violator. Kolker v. State, 200 Ga. App. 72, 406 S.E.2d 514, cert. denied, 200 Ga. App. 896, 406 S.E.2d 514 (1991). Waiver may not be raised on appeal absent objection. - In those probate court cases in which there is no record that a timely objection to trial without a jury was made, the right to a jury trial is waived, and the issue cannot be raised for the first time on appeal. Nicholson v. State, 261 Ga. 197, 403 S.E.2d 42 (1991), but see Davis v. State, 197 Ga. App. 746, 399 S.E.2d 554 (1990). Superior court erred in remanding the case to the municipal court for further determination of the waiver of jury trial issue when the record failed to show that the defendant had objected to proceeding

without a jury in the municipal court. Doggett v. City of Manchester, 201 Ga. App. 425, 411 S.E.2d 288, cert. denied, 201 Ga. App. 903, 411 S.E.2d 288 (1991); Shannon v. State, 205 Ga. App. 831, 424 S.E.2d 51, cert. denied, 205 Ga. App. 901, 424 S.E.2d 51 (1992). Georgia Supreme Court has held that a written waiver of a right to trial by jury is itself waived if the defendant proceeds to trial without objecting to being tried without a jury. Giles v. City of Locust Grove, 203 Ga. App. 164, 416 S.E.2d 758, cert. denied, 203 Ga. App. 906, 416 S.E.2d 758 (1992). Defendant waived the defendant’s rights under O.C.G.A. § 40-13-23 when the record fails to reflect that the defen-

dant interposed any objection in the municipal court to being tried without a jury, and the record contains a finding by the municipal court judge that the defendant and defense counsel were specifically advised by the court of the defendant’s right to trial by jury. Giles v. City of Locust Grove, 203 Ga. App. 164, 416 S.E.2d 758, cert. denied, 203 Ga. App. 906, 416 S.E.2d 758 (1992). Cited in Newmans v. State, 65 Ga. App. 288, 16 S.E.2d 87 (1941); Dodd v. State, 85 Ga. App. 589, 69 S.E.2d 784 (1952); Kendall v. State, 196 Ga. App. 760, 396 S.E.2d 927 (1990); Walton v. State, 197 Ga. App. 263, 398 S.E.2d 221 (1990); Puckett v. State, 239 Ga. App. 582, 521 S.E.2d 634 (1999).

OPINIONS OF THE ATTORNEY GENERAL Burden on defendant to notify court. - Probate court has an affirmative burden to obtain a written waiver of a jury trial prior to proceeding to dispose of a pending traffic case on the merits. However, the defendant has an affirmative burden to notify the court if a jury trial is desired. 1980 Op. Att’y Gen. No. 80-135. Removal or appeal bond not condition for transfer. - Municipal judge is not authorized to require a removal or appeal bond as a condition of transferring a case to superior court under O.C.G.A. § 40-13-23. 1984 Op. Att’y Gen. No. U84-44. Disposition of fines in cases transferred between courts. - Municipality cannot collect and retain fines resulting from cases transferred from municipal court to superior court pursuant to

O.C.G.A. § 40-13-23, since fines imposed by the superior court must be paid into the county treasury. 1984 Op. Att’y Gen. No. U84-44. Phrase ‘‘if reasonable cause exists’’ in subsection (a) of O.C.G.A. § 40-13-23 provides that, if a defendant has notified the court that the defendant desires a trial by jury, the court must review the case and, if reasonable cause exists to prosecute the matter against the defendant, the court is to bind the charges over to the court having jurisdiction to try the offense and the ability to provide the defendant’s requested trial by a jury. If reasonable cause to continue the prosecution does not exist, the municipal court may dismiss the charges at that point. 1989 Op. Att’y Gen. No. U89-23.

RESEARCH REFERENCES Am. Jur. 2d. - 8 Am. Jur. 2d, Automobiles and Highway Traffic, § 935. C.J.S. - 15A C.J.S., Common Law, § 1.

Notes of Decisions
Cited in 18 cases, 1988–2011 · leading case: Nicholson v. State, 403 S.E.2d 42 (Ga. 1991).
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Nicholson v. State, 403 S.E.2d 42 (Ga. 1991). · cites it 12× “In his appeal to the Court of Appeals, he contended that the probate court was without jurisdiction to dispose of the offense because the record contains no written waiver of trial by jury as required by OCGA § 40-13-23. In an unreported decision, the Court of Appeals affirmed…”
Harris v. State, 405 S.E.2d 501 (Ga. Ct. App. 1991). · cites it 8× “See OCGA § 40-13-23 (a); Snellings v. State, 194 Ga.”
Adams v. State, 375 S.E.2d 642 (Ga. Ct. App. 1988). · cites it 4× “Accordingly, when the demand for trial under OCGA § 17-7-170 was filed in the Duluth City Court, which does not impanel juries or hold jury trials (see OCGA § 40-13-23), transfer from that court to the Gwinnett State Court was required.”
Dean v. State, 711 S.E.2d 42 (Ga. Ct. App. 2011). · cites it 2× “See OCGA § 40-13-23 (probate court cannot dispose of traffic misdemeanor cases unless defendant waives trial by jury).”
Snellings v. State, 391 S.E.2d 36 (Ga. Ct. App. 1990). · cites it 4× “However, in OCGA § 40-13-23, that power is made contingent on the obtention of a written waiver of trial by jury: "No court defined in this article shall have the power to *553 dispose of traffic misdemeanor cases as provided in this article unless the defendant shall first…”
Giles v. City of Locust Grove, 416 S.E.2d 758 (Ga. Ct. App. 1992). · cites it 6× “(But see OCGA § 40-13-23 (a), specifying that municipal courts shall not have the power to dispose of misdemeanor traffic cases “unless the defendant shall first waive in writing a trial by jury.”
Klinetob v. State, 389 S.E.2d 551 (Ga. Ct. App. 1989). · cites it 4× “2 applies when a case is bound over from recorder's court for jury trial pursuant to OCGA § 40-13-23 (a), the dissent's conclusion ignores the question of whether "holding" a file until the prosecutor retrieves it, regardless of the length of time that elapses, discharges the…”
Puckett v. State, 521 S.E.2d 634 (Ga. Ct. App. 1999). · cites it 4× “) Puckett is correct that, initially, the Peachtree City Municipal Court had jurisdiction over all three offenses. However, when Puckett filed his motion requesting a jury trial, the municipal court was divested of jurisdiction over the state law offenses of DUI and failure to…”
Shannon v. State, 424 S.E.2d 51 (Ga. Ct. App. 1992). · cites it 2× “Shannon asserts that the superior court erred in failing to find that the probate court lacked jurisdiction because there was no written waiver of jury trial as required by OCGA § 40-13-23. A written waiver of jury trial is a matter of personal rather than subject matter…”
Walker v. State, 405 S.E.2d 887 (Ga. Ct. App. 1991). · cites it 2× “Relying on OCGA § 40-13-23 (a) and Snellings v. State, 194 Ga.”
Gilbert v. City of Manchester, 419 S.E.2d 487 (Ga. Ct. App. 1992). · cites it 4× “As to the second, the superior court rejected Gilbert’s assertion that his conviction should be reversed under OCGA § 40-13-23 (a), because it provides that the court does not have jurisdiction “unless the defendant shall first waive in writing a trial by jury,” and no written…”
Rustin v. State, 386 S.E.2d 535 (Ga. Ct. App. 1989). · cites it 2× “Appellant contends the trial court erred by proceeding to trial I without having first obtained a waiver of jury trial in writing pursuant I to OCGA § 40-13-23 (a), which provides, in pertinent part, that “[n]ol court defined in this article shall have the power to dispose of…”
Show all 18 citing cases →
— 40-13-23(a) — 1 case
Nicholson v. State, 403 S.E.2d 42 (Ga. 1991). “In his appeal to the Court of Appeals, he contended that the probate court was without jurisdiction to dispose of the offense because the record contains no written waiver of trial by jury as required by OCGA § 40-13-23. In an unreported decision, the Court of Appeals affirmed…”
— 40-13-23(b) — 1 case
Nicholson v. State, 403 S.E.2d 42 (Ga. 1991). “In his appeal to the Court of Appeals, he contended that the probate court was without jurisdiction to dispose of the offense because the record contains no written waiver of trial by jury as required by OCGA § 40-13-23. In an unreported decision, the Court of Appeals affirmed…”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.