Jacobs v. State

184 Ga. App. 869 (1987)

363 S.E.2d 155

JACOBS v. THE STATE.

74846.

Court of Appeals of Georgia.

Decided October 28, 1987.

Rehearing Denied November 17, 1987.

Jessie Jacobs, Pro se.

Beverly B. Hayes, Jr., District Attorney, Edwin J. Wilson, Assistant District Attorney, for appellee.

BEASLEY, Judge.

Jacobs pled guilty, with the assistance of appointed counsel, to one count of burglary, OCGA § 16-7-1 (a). He has filed a pro se appeal.

A review of the record of the plea and sentencing proceeding shows that the trial court did not advise defendant of his right to have counsel appointed for any appeal he might wish to pursue. Cochran v. State, 253 Ga. 10 (315 SE2d 653) (1984); Smith v. State, 253 Ga. 169 (316 SE2d 757) (1984); Norwood v. State, 172 Ga. App. 685 (324 SE2d 545) (1984). While a defendant has a right to pursue an appeal pro se, Ga. Const. 1983, Art. I, Sec. I, Par. XII, Cochran v. State, supra, it must be preceded by an appropriate waiver of the right to appellate counsel. The failure to advise of the right to appeal was harmless error because defendant has in fact appealed, and in a timely fashion. But this does not cover the failure to advise of the right to counsel on appeal, Reid v. State, 235 Ga. 378 (219 SE2d 740) (1975), because appellant is here pro se without a showing on the record of an opportunity to choose.

Therefore, we dismiss this appeal without prejudice and remand this case for instructions by the trial court to Jacobs consistent with Clarke v. Zant, 247 Ga. 194 (275 SE2d 49) (1981) and Cochran, supra.

Appeal dismissed and case remanded. McMurray, P. J., and Sognier, J., concur.