dissenting.
The superior court found that the defendant is college educated, presently a law student at the University of Georgia, has appeared- in the probate court on two prior occasions with speeding tickets, and has received five other citations in other places. Further, he made no attempt to notify the probate court that he desired a jury trial although OCGA § 40-13-21 places upon him the affirmative duty of requesting one. The court noted a written waiver is required under OCGA § 40-13-21 because most of the defendants in probate court appear pro se, and this requirement protects the illiterate and incompetent.
I fully agree with the trial court that the defendant waived his right to a jury trial when a waiver appears as a part of the transcript of the proceedings in the probate court. He admitted in superior court that he made no request for a jury trial in the lower court. Appellant’s reliance upon Littlejohn v. State, 165 Ga. App. 562 (301 SE2d 917) (1983) is misplaced. The statute in question in that case required the magistrate, prior to trial on a traffic offense, to advise the accused of his right to a jury trial and, upon being informed that the accused did not desire a jury trial, to obtain a written waiver. Under OCGA § 40-*55413-21, the accused bears the burden of requesting a jury trial. The record plainly shows that the defendant knowingly and intelligently waived his right to a jury trial.
Decided February 19, 1990. Ross S. Snellings, pro se. Lindsay A. Tise, Jr., District Attorney, Francis J. George, Assistant District Attorney, for appellee.I must respectfully dissent.