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DENSON v. STATE

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Court of Appeals of Georgia.

DENSON v. The STATE.

No. A99A0548.

Decided: April 23, 1999

Ben T. Smith, Jr., Thomaston, for appellant. William T. McBroom III, District Attorney, Mark M. Irvin, Assistant District Attorney, for appellee.

Denson was convicted of possession of cocaine with intent to distribute and given a 30-year sentence.   His motion for new trial was denied.   In this appeal, he charges the trial court with error in denying his request for counsel and in failing to conduct a proper inquiry either as to why he did not have counsel or as to his indigence.

Following Denson's arrest, he was released from custody after posting a $10,000 bond.   He appeared at trial without an attorney and requested a continuance in order to obtain one.   The court denied the request after finding that at arraignment and certain pretrial proceedings (all unreported), Denson stated he wished to proceed pro se and would hire an attorney if he should choose to be represented by one.   Held:

 The dispositive issue is whether the State satisfied its burden of showing a valid waiver by Denson of his right to counsel.   See Hamilton v. State, 233 Ga.App. 463, 467(1)(b), 504 S.E.2d 236 (1998).

When waiver of the right to counsel rests upon the defendant's election of his alternative right of self-representation, “the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se.   The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.”  [Cit.]

(Emphasis omitted.)  Burnett v. State, 182 Ga.App. 539, 540(1), 356 S.E.2d 231 (1987);  see McCall v. State, 232 Ga.App. 684, 686(1), 503 S.E.2d 578 (1998).

The record in this case does not show that the trial court informed Denson of either his right to counsel or the dangers of proceeding pro se.   Waiver is never presumed from a silent record.  Keith v. State, 218 Ga.App. 729, 730(1), 463 S.E.2d 51 (1995).   Therefore, Denson's conviction must be reversed.

Judgment reversed.

HAROLD R. BANKE, Senior Appellate Judge.

BLACKBURN, P.J., and BARNES, J., concur.

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