Tolbert v. Toole

In the Supreme Court of Georgia

Decided: November 17, 2014

S14A1158. TOLBERT v. TOOLE, WARDEN.

NAHMIAS, Justice.

In 2009, a jury found David Tolbert guilty of armed robbery and other

crimes, and he was sentenced to life in prison. The Court of Appeals affirmed

his convictions on direct appeal. See Tolbert v. State, 313 Ga. App. 46 (720

SE2d 244) (2011). Tolbert then filed a petition for habeas corpus alleging,

among other things, that his pro se notice of appeal from the trial court’s pretrial

oral ruling denying his motion for discharge and acquittal had never been

resolved and therefore deprived the court of jurisdiction to try him, rendering

his resulting judgments of conviction void. The habeas court denied the

petition.

This Court granted Tolbert’s application to appeal to consider whether the

habeas court erred in ruling that Tolbert had procedurally defaulted his

jurisdictional claim based on the pretrial, pro se notice of appeal. We conclude

that the habeas court’s procedural default ruling was erroneous, but we also
conclude that the record on appeal does not support Tolbert’s jurisdictional

claim. Accordingly, we affirm the denial of habeas relief under the right-for-

any-reason doctrine. See Bunn v. State, 291 Ga. 183, 193 (728 SE2d 569)

(2012).

1. On August 21, 2007, a Houston County grand jury indicted Tolbert

and a co-defendant for armed robbery, aggravated battery, aggravated sodomy,

and other crimes related to a brutal home invasion.1 The trial court appointed

the public defender’s office to represent Tolbert, and attorney Robert Surrency

was assigned to the case. On October 26, 2007, through counsel, Tolbert filed

a statutory speedy trial demand.2 At some point before February 2008, the trial

court struck the demand during an off-the-record discussion with counsel for

Tolbert and the State, but without Tolbert present and without entering a written

order. On March 12, 2008, the court granted Tolbert leave to file another, out-

of-time statutory speedy trial demand, but he never filed one.

1
The crimes are described at length in Tolbert, 313 Ga. App. at 46-48.
2
See OCGA § 17-7-171 (a) (“Any person accused of a capital offense may enter a demand
for speedy trial at the term of court at which the indictment is found or at the next succeeding regular
term thereafter; or, by special permission of the court, the defendant may at any subsequent term
thereafter demand a speedy trial. . . .”); Walker v. State, 290 Ga. 696, 696 (723 SE2d 894) (2012)
(recognizing armed robbery as a “capital offense” for purposes of OCGA § 17-7-171).

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 The case was then set for trial in August 2008, with a motions hearing set

for July 25. On July 15, Tolbert, who was still represented by Surrency, filed

a pro se motion to remove counsel and a pro se motion for discharge and

acquittal on statutory speedy trial grounds. At a hearing on July 17, the trial

court orally denied both of Tolbert’s pro se motions. Tolbert then invoked his

constitutional right to represent himself, see generally Faretta v. California, 422

U.S. 806 (95 SCt 2525, 45 LE2d 562) (1975), and the court discussed with

Tolbert why that might be a bad idea. As the hearing proceeded, the court said

that it was relieving Surrency and the public defender’s office from representing

Tolbert and indicated that it was signing an order to that effect. However, no

such order appears in the record on appeal.3

Two weeks later,4 on July 31, the public defender’s office filed a “Notice

3
In the habeas court, Tolbert filed – but then withdrew – a motion seeking an order directing
the trial court to supplement the record with respect to his pro se status as well as other matters. See
Perkins v. Hall, 288 Ga. 810, 828 n.10 (708 SE2d 335) (2011) (noting that this Court has previously
sanctioned the use by habeas courts of OCGA § 5-6-41 for the purpose of directing a trial court to
reconstruct an incomplete trial record). Thus, Tolbert did not obtain a ruling from the habeas court
on his motion, and he has not enumerated as error in this appeal any alleged inadequacy of the trial
court record in this regard. Tolbert also filed a motion in this Court to supplement the record on
appeal, but that motion does not concern his pro se status and thus is not relevant to the issues we
are addressing; the motion is therefore denied.
4
During this period, Tolbert filed several more pro se motions, and a hearing was set for July
25. However, no transcript of such a hearing is in the record on appeal, nor are any orders on
Tolbert’s motions.

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of Withdrawal” as counsel of record for Tolbert, but the record on appeal does

not contain the required order permitting withdrawal or even a request for such

an order.5 The next day, August 1, 2008, Tolbert filed a pro se notice of appeal

purporting to appeal the trial court’s oral denial on July 17 of his pro se motion

for discharge and acquittal. That same day, August 1, a private attorney,

William Peterson, signed and served an “Entry of Appearance” on behalf of

Tolbert; it was filed on August 4.6

With Peterson as his counsel, Tolbert was tried in August 2008 and again

5
Uniform Superior Court Rule 30.2 requires defense counsel entered as counsel of record
at arraignment to “represent the accused in that case throughout the trial, unless other counsel and
the defendant notify the judge prior to trial that such other counsel represents the accused and is
ready to proceed, or counsel is otherwise relieved by the judge.” In order for defense counsel to
formally withdraw after arraignment, several steps are required. First, counsel must give the client
at least ten days’ written notice of counsel’s intent to withdraw and must “submit a written request
to an appropriate judge of the court for an order permitting such withdrawal.” USCR 4.3 (1).
Counsel next must file a detailed notice concerning the status of the case and the client’s rights and
obligations, which is provided to opposing counsel and served on the client. See USCR 4.3 (2).
Then counsel must file a “written notification certificate,” mail a copy to the client and all other
parties, and provide an additional copy to the client by the most expedient means available. See id.
“After the entry of an order permitting withdrawal, the client shall be notified by the withdrawing
attorney of the effective date of the withdrawal . . . .” Id. The Rules establish a much simpler
procedure for formal withdrawal of counsel where another attorney is immediately taking counsel’s
place. See USCR 4.3 (3) (allowing the new attorney to file a “notice of substitution of counsel
signed by the party and the new attorney” with service of a “a copy of the notice on the former
attorney, opposing counsel or party if unrepresented, and the assigned judge,” and specifying that
if this procedure is followed, “[n]o other or further action shall be required by the former attorney
to withdraw from representing the party”).
6
See USCR 4.2 (“No attorney shall appear in that capacity before a superior court until the
attorney has entered an appearance by filing a signed entry of appearance form or by filing a signed
pleading in a pending action.”).

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in December 2008, but both proceedings ended in mistrials brought on by the

State. Tolbert was tried for a third time in November 2009, and the jury found

him guilty of all charges. On November 6, 2009, the trial court entered

judgments of conviction on the jury’s verdicts and sentenced Tolbert to life in

prison. New counsel was appointed to represent Tolbert on motion for new trial

and direct appeal. In that appeal, the Court of Appeals affirmed Tolbert’s

convictions, holding, among other things, that while the trial court’s off-the-

record handling of the October 2007 speedy trial demand was “disconcerting”

and “troubl[ing],” the demand had been struck, and Tolbert had then acquiesced

in that ruling and waived the opportunity to file an out-of-time demand. Tolbert,

313 Ga. App. at 49-53. On September 10, 2012, this Court denied Tolbert’s

petition for certiorari.

On October 24, 2012, Tolbert filed a pro se petition for habeas corpus

alleging, among many other things, that his convictions were void because his

August 1, 2008 pro se notice of appeal had never been resolved and the trial

court therefore lacked jurisdiction to try him. On July 22, 2013, the habeas

court entered an order denying relief, holding that Tolbert had procedurally

defaulted this jurisdictional claim by failing to raise the issue in the trial court

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and on direct appeal, and that he had not shown cause and prejudice to

overcome the default. On April 22, 2014, this Court granted Tolbert’s

application for a certificate of probable cause to appeal, posing as an issue to be

addressed only the jurisdictional claim.

2. In the habeas court and on appeal, Tolbert has asserted that he was

not represented by counsel when he filed his pretrial pro se notice of appeal on

August 1, 2008, and the Warden has not countered that assertion. Without

addressing whether Tolbert’s assertion is correct and thus whether his pro se

notice of appeal was cognizable, the habeas court concluded that Tolbert had

nevertheless procedurally defaulted his claim that the notice of appeal deprived

the trial court of jurisdiction to try him. If the notice of appeal was effective,

however, its filing would have “act[ed] as a supersedeas, depriving the trial

court of the power to affect the judgment appealed.” Wetherington v. State, 295

Ga. 172, 173 (758 SE2d 299) (2014) (quotation marks omitted). The “judgment

appealed” was the oral denial of Tolbert’s statutory speedy trial motion for

discharge and acquittal, and reversal of that ruling by the Court of Appeals

would result in Tolbert’s acquittal, thereby barring any subsequent trial or

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conviction based on double jeopardy.7

Thus, the pretrial notice of appeal, if effective, would have deprived the

trial court of jurisdiction to try Tolbert until his appeal was resolved and the trial

court received and filed the remittitur from the appellate court. See Chambers

v. State, 262 Ga. 200, 201-202 (415 SE2d 643) (1992) (holding that the State’s

appeal of a suppression order deprived the trial court of jurisdiction to try the

accused and rendered his resulting convictions for armed robbery and other

crimes void); Styles v. State, 245 Ga. App. 90, 92 (537 SE2d 377) (2000)

(Blackburn, P.J., specially concurring) (explaining that the supersedeas resulting

from an appeal in a criminal case applies to all “proceedings which either

require a ruling on the matters on appeal or directly or indirectly affect such

matters”). Compare Strickland v. State, 258 Ga. 764, 766 (373 SE2d 736)

(1988) (holding that where the trial court denied a defendant’s motion for

discharge and acquittal on double jeopardy grounds but also made an express

finding that the motion was “dilatory and frivolous,” the court retained

jurisdiction to try the defendant despite his filing of a notice of appeal from the

7
The denial of a motion for acquittal on statutory speedy trial grounds is immediately
appealable. See Hubbard v. State, 254 Ga. 694, 695-696 (333 SE2d 827) (1985).

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denial).

The appeal at issue here would properly have been dismissed, because the

trial court’s oral ruling had not been reduced to an appealable written order. See

Hill v. State, 281 Ga. 795, 799 (stating that an “oral order [is] neither final nor

appealable until and unless it is reduced to writing, signed by the judge, and

filed with the clerk”). That would not have meant, however, that the trial court

retained jurisdiction. See Hughes v. Sikes, 273 Ga. 804, 805 (546 SE2d 518)

(2001) (“Although the notice of appeal must be filed in the court below, [the

appellate court] alone has the authority to determine whether such filing is

sufficient to invoke its jurisdiction.”). Accord Scroggins v. State, 288 Ga. 346,

347 n.2 (703 SE2d 622) (2010). And contrary to the habeas court’s ruling, our

precedents indicate that this sort of jurisdictional defect due to supersedeas

cannot be waived. See Chambers, 262 Ga. at 201 (“‘Any proceeding so

conducted [in the trial court] ‘is coram non judice,’ and the resulting want of

jurisdiction cannot be waived by conduct of counsel so as to give effect to the

void judgment.’” (citation omitted)); Lyon v. Lyon, 103 Ga. 747, 751-752 (30

SE 575) (1898) (original source of that quotation). Accordingly, the habeas

court erred in relying on procedural default to reject Tolbert’s jurisdictional

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claim.

3. Having carefully reviewed the record on appeal, however, we

conclude that the habeas court’s implicit assumption – that Tolbert’s pro se

August 1, 2008 notice of appeal was effective – was mistaken. Because Tolbert

cannot show from the record that he was not represented by counsel on that date,

he cannot show that his pro se notice of appeal was legally valid and acted to

deprive the trial court of jurisdiction to try him. The habeas court therefore

reached the right result in denying relief on Tolbert’s jurisdictional claim.

In support of his assertion that he was not represented by counsel on

August 1, 2008, Tolbert points to statements by the trial court at the July 17,

2008 hearing on his motion for discharge and acquittal and motion to remove

counsel, both of which he filed pro se even though he was indisputably

represented by counsel at that time. The transcript of that hearing shows that the

trial court orally denied the motion to remove counsel and then discussed

whether it was a good idea for Tolbert to represent himself. This was followed

by a discussion about relieving Surrency and the public defender’s office from

representing Tolbert, and the trial court indicated that it was signing an order to

that effect. However, no such order is found in the record on appeal, and

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“‘[e]ven though an order may be signed, it is not considered to have been

entered and, thus, does not become effective until it is filed with the clerk.’”

State v. White, 282 Ga. 859, 860 (655 SE2d 575) (2008). See also Titelman v.

Stedman, 277 Ga. 460, 461 (591 SE2d 774) (2003) (“Until an order is signed by

the judge (and is filed) it is ineffective for any purpose.” (citations and quotation

marks omitted)).

Tolbert also points to the “Notice of Withdrawal” that the public

defender’s office filed on July 31, 2008, the day before he filed his pro se notice

of appeal. This notice of withdrawal is somewhat inconsistent with Tolbert’s

contention that the trial court had already ordered the public defender’s office

to withdraw at the hearing two weeks earlier. In any event, the withdrawal

notice had no effect on Tolbert’s representation, because “‘[i]t is the trial judge

and not counsel who controls the proceedings and the conduct of the court

officers who are appearing before the court.’” Dunn v. Duke, 216 Ga. App. 829,

831 (456 SE2d 65) (1995) (citation omitted). A formal withdrawal of counsel

“‘cannot be accomplished until after the trial court issues an order permitting the

withdrawal. Until such an order properly is made and entered, no formal

withdrawal can occur and counsel remains counsel of record.’” Id. (citation

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omitted). See USCR 4.3 (1) - (2). Again, no such order permitting withdrawal

is found in the record on appeal.

In addition, on Friday, August 1, 2008, the day after the public defender’s

office filed its Notice of Withdrawal and the same day that Tolbert filed his pro

se notice of appeal, a new lawyer signed and served his appearance as Tolbert’s

counsel; that appearance is found filed in the record on Monday, August 4. This

lawyer represented Tolbert through his three trials, and his appearance

immediately after the public defender’s office noted its desire to withdraw

indicates that Tolbert was not authorized to proceed pro se. In sum, the record

on appeal indicates that Tolbert was represented by counsel when he filed his

pro se notice of appeal on August 1, 2008.

A criminal defendant in Georgia does not have the right to represent

himself and also be represented by an attorney, and pro se filings by represented

parties are therefore “unauthorized and without effect.” Cotton v. State, 279 Ga.

358, 361 (613 SE2d 628) (2005). See also Williams v. Moody, 287 Ga. 665,

669 (697 SE2d 199) (2010). Tolbert’s pro se notice of appeal, filed when the

record indicates that he was represented by counsel, had no legal effect and thus

did not divest the trial court of jurisdiction to try him. This understanding of the

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pro se notice of appeal is bolstered by the fact that this case proceeded through

not one, but three trials, and a direct appeal, without any indication that Tolbert

or his counsel ever complained that there was a valid pretrial appeal still

pending. It is also worth noting that, had Tolbert’s pro se notice of appeal been

sent to the Court of Appeals with the record, the appeal would properly have

been dismissed, either on the ground that the notice of appeal was invalid

because Tolbert was not actually pro se when he filed it or on the ground that he

was seeking to appeal an oral order that had not been reduced to writing, signed,

and filed, see Hill, 281 Ga. at 799 – but the statutory speedy trial issue that

Tolbert sought to raise was actually decided (albeit against him) in his direct

appeal after trial, see Tolbert, 313 Ga. App. at 49-53.

It is Tolbert’s burden, as the party challenging the ruling below, to

affirmatively show error from the record on appeal. See Adamson v. Sanders,

279 Ga. 187, 188 (611 SE2d 44) (2005). Tolbert has not carried that burden

here. Accordingly, although the habeas court erred in resting its judgment on

procedural default, we affirm its denial of habeas relief.

Judgment affirmed. All the Justices concur.

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