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Dossett v. State

Dossett v. the State

Dossett v. State, 404 S.E.2d 548 (Ga. 1991)
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Court
Supreme Court of Georgia · State Highest Courts
Decided
May 10, 1991
Docket
No. S91G0120
Judges
Smith, Benham
Citations
404 S.E.2d 548261 Ga. 3621991 Ga. LEXIS 204

Opinion of the Court — Per Curiam

Per curiam.

Appellant was convicted in probate court of driving under the influence of alcohol. He appealed that conviction to superior court, which affirmed. On appeal to the Court of Appeals, appellant argued that the probate court’s judgment was void because there was no written waiver of jury trial. The Court of Appeals held that the issue had been waived by appellant’s failure to raise it in the superior court, and affirmed his conviction. Dossett v. State, 197 Ga. App. 139 (2) ( 398 SE2d 24 ) (1990). We granted certiorari to consider whether the absence from the record of a waiver of jury trial in probate court can be raised in an appellate court if not first raised in superior court.

This case is controlled by Nicholson v. State, 261 Ga. 197 ( 403 SE2d 42 ) (1991). Under the holding of that case, Dossett’s failure to raise in the probate court the issue of the absence of a waiver of jury trial prevents appellate review of the issue. The implication in the Court of Appeals’ opinion in this case that a defendant may preserve this issue by raising it in the superior court is inconsistent with our opinion in Nicholson v. State, and is disapproved.

Judgment affirmed.

All the Justices concur, except Smith, P. J., and Benham, J., who dissent.

*363 Decided May 10, 1991 — Reconsideration denied June 26, 1991. Virgil L. Brown & Associates, Bentley C. Adams III, Anne Cobb, for appellant. William G. Hamrick III, District Attorney, for appellee.

Dissent — Benham

Benham, Justice,

dissenting.

For the reasons stated in my dissent in Nicholson v. State, 261 Ga. 197 ( 403 SE2d 42 ) (1991), I respectfully dissent to the judgment in this case.

I am authorized to state that Presiding Justice Smith joins in this dissent.

Combined text as published — syllabus, headnotes and all opinions in one document

404 S.E.2d 548 (1991) 261 Ga. 362

DOSSETT

v.

THE STATE.

No. S91G0120.

Supreme Court of Georgia.

Decided May 10, 1991.

Virgil L. Brown & Associates, Bentley C. Adams III, Anne Cobb, for appellant.

William G. Hamrick III, District Attorney, for appellee.

OPINION

PER CURIAM

Appellant was convicted in probate court of driving under the influence of alcohol. He appealed that conviction to superior court, which affirmed.

On appeal to the Court of Appeals, appellant argued that the probate court's judgment was void because there was no written waiver of jury trial. The Court of Appeals held that the issue had been waived by appellant's failure to raise it in the superior court, and affirmed his conviction. Dossett v. State, 197 Ga. App. 139 (2) ( 398 S.E.2d 24 ) (1990). We granted certiorari to consider whether the absence from the record of a waiver of jury trial in probate court can be raised in an appellate court if not first raised in superior court.

This case is controlled by Nicholson v. State, 261 Ga. 197 ( 403 S.E.2d 42 ) (1991). Under the holding of that case, Dossett's failure to raise in the probate court the issue of the absence of a waiver of jury trial prevents appellate review of the issue. The implication in the Court of Appeals' opinion in this case that a defendant may preserve this issue by raising it in the superior court is inconsistent with our opinion in Nicholson v. State , and is disapproved.

Judgment affirmed.

Benham, Justice, dissenting.

For the reasons stated in my dissent in Nicholson v. State, 261 Ga. 197 ( 403 S.E.2d 42 ) (1991), I respectfully dissent to the judgment in this case.

I am authorized to state that Presiding Justice Smith joins in this dissent.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1991: 31992: 219912026peak 1991 · 3

Relies on it most ⓘ

  1. Walton v. State405 S.E.2d 29 (Ga. 1991)
  2. Shannon v. State424 S.E.2d 51 (Ga. Ct. App. 1992)
  3. Giles v. City of Locust Grove416 S.E.2d 758 (Ga. Ct. App. 1992)
  4. Doggett v. City of Manchester411 S.E.2d 288 (Ga. Ct. App. 1991)
  5. Phillips v. State409 S.E.2d 557 (Ga. Ct. App. 1991)

Most recent

  1. Shannon v. State424 S.E.2d 51 (Ga. Ct. App. 1992)
  2. Giles v. City of Locust Grove416 S.E.2d 758 (Ga. Ct. App. 1992)
  3. Doggett v. City of Manchester411 S.E.2d 288 (Ga. Ct. App. 1991)
  4. Phillips v. State409 S.E.2d 557 (Ga. Ct. App. 1991)
  5. Walton v. State405 S.E.2d 29 (Ga. 1991)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

DepthCaseCited by
Nicholson v. State, 403 S.E.2d 42 (Ga. 1991) 28
Dossett v. State, 398 S.E.2d 24 (Ga. Ct. App. 1990) 2

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