2021 Georgia Code
Title 40 - Motor Vehicles and Traffic
Chapter 13 - Prosecution of Traffic Offenses
Article 2 - Arrests, Trials, and Appeals
§ 40-13-23. Waiver of Jury Trial; Withdrawal of Waiver

1. No court defined in this article shall have the power to dispose of traffic misdemeanor cases as provided in this article unless the defendant shall first waive in writing a trial by jury. If the defendant wishes a trial by jury, he shall notify the court and, if reasonable cause exists, he shall be immediately bound over to the court in the county having jurisdiction to try the offense, wherein a jury may be impaneled. Where a cash bond, property bond, or driver's license in lieu of bond has been posted, the bond shall be transferred to the court assuming jurisdiction, and the defendant shall not be required to post a new bond by the court assuming jurisdiction.
2. No waiver of a trial by jury may be withdrawn when such waiver has been interposed for the purpose of delay. Except with approval of the court, no waiver of a trial by jury may be withdrawn after the commencement of the trial or the filing of motions on behalf of the defendant, whichever comes first.

(Ga. L. 1937-38, Ex. Sess., p. 558, § 4; Ga. L. 1985, p. 149, § 40; Ga. L. 1987, p. 329, § 1; Ga. L. 1992, p. 2785, § 29; Ga. L. 1996, p. 1279, § 1.)

- Pursuant to Code Section 28-9-5, in 1996, a comma was inserted following "property bond" in the third sentence of subsection (a).

JUDICIAL DECISIONS

Written waiver required.

- Language of O.C.G.A. § 40-13-23 is clear and unambiguous: without a written waiver of trial by jury, the probate court is without authority to proceed to disposition of the case. An oral waiver at a recorded hearing is not sufficient compliance with the statute. Snellings v. State, 194 Ga. App. 552, 391 S.E.2d 36 (1990), but see Nicholson v. State, 261 Ga. 197, 403 S.E.2d 42 (1991).

When a review of the record reveals that the appellant did not sign the jury trial waiver, the probate court was without authority to dispose of the case. Even though there is no indication that the waiver-of-jury-trial issue was raised in the superior court, this is a matter which goes to the subject matter jurisdiction of the probate court and the right to attack the judgment as a nullity is not waived by the failure to attack the judgment before. Davis v. State, 197 Ga. App. 746, 399 S.E.2d 554 (1990), but see Nicholson v. State, 261 Ga. 197, 403 S.E.2d 42 (1991).

- When no evidence appeared indicating the defendant's objection to proceeding without a jury on a prior charge of driving under the influence tried in the recorder's court, the defendant waived the right to a jury trial on that charge, and the trial court did not err by considering the valid prior judgment in sentencing the defendant as a third-time violator. Kolker v. State, 200 Ga. App. 72, 406 S.E.2d 514, cert. denied, 200 Ga. App. 896, 406 S.E.2d 514 (1991).

- In those probate court cases in which there is no record that a timely objection to trial without a jury was made, the right to a jury trial is waived, and the issue cannot be raised for the first time on appeal. Nicholson v. State, 261 Ga. 197, 403 S.E.2d 42 (1991), but see Davis v. State, 197 Ga. App. 746, 399 S.E.2d 554 (1990).

Superior court erred in remanding the case to the municipal court for further determination of the waiver of jury trial issue when the record failed to show that the defendant had objected to proceeding without a jury in the municipal court. Doggett v. City of Manchester, 201 Ga. App. 425, 411 S.E.2d 288, cert. denied, 201 Ga. App. 903, 411 S.E.2d 288 (1991); Shannon v. State, 205 Ga. App. 831, 424 S.E.2d 51, cert. denied, 205 Ga. App. 901, 424 S.E.2d 51 (1992).

Georgia Supreme Court has held that a written waiver of a right to trial by jury is itself waived if the defendant proceeds to trial without objecting to being tried without a jury. Giles v. City of Locust Grove, 203 Ga. App. 164, 416 S.E.2d 758, cert. denied, 203 Ga. App. 906, 416 S.E.2d 758 (1992).

Defendant waived the defendant's rights under O.C.G.A. § 40-13-23 when the record fails to reflect that the defendant interposed any objection in the municipal court to being tried without a jury, and the record contains a finding by the municipal court judge that the defendant and defense counsel were specifically advised by the court of the defendant's right to trial by jury. Giles v. City of Locust Grove, 203 Ga. App. 164, 416 S.E.2d 758, cert. denied, 203 Ga. App. 906, 416 S.E.2d 758 (1992).

Cited in Newmans v. State, 65 Ga. App. 288, 16 S.E.2d 87 (1941); Dodd v. State, 85 Ga. App. 589, 69 S.E.2d 784 (1952); Kendall v. State, 196 Ga. App. 760, 396 S.E.2d 927 (1990); Walton v. State, 197 Ga. App. 263, 398 S.E.2d 221 (1990); Puckett v. State, 239 Ga. App. 582, 521 S.E.2d 634 (1999).

OPINIONS OF THE ATTORNEY GENERAL

Burden on defendant to notify court.

- Probate court has an affirmative burden to obtain a written waiver of a jury trial prior to proceeding to dispose of a pending traffic case on the merits. However, the defendant has an affirmative burden to notify the court if a jury trial is desired. 1980 Op. Att'y Gen. No. 80-135.

- Municipal judge is not authorized to require a removal or appeal bond as a condition of transferring a case to superior court under O.C.G.A. § 40-13-23. 1984 Op. Att'y Gen. No. U84-44.

- Municipality cannot collect and retain fines resulting from cases transferred from municipal court to superior court pursuant to O.C.G.A. § 40-13-23, since fines imposed by the superior court must be paid into the county treasury. 1984 Op. Att'y Gen. No. U84-44.

Phrase "if reasonable cause exists" in subsection (a) of O.C.G.A. § 40-13-23 provides that, if a defendant has notified the court that the defendant desires a trial by jury, the court must review the case and, if reasonable cause exists to prosecute the matter against the defendant, the court is to bind the charges over to the court having jurisdiction to try the offense and the ability to provide the defendant's requested trial by a jury. If reasonable cause to continue the prosecution does not exist, the municipal court may dismiss the charges at that point. 1989 Op. Att'y Gen. No. U89-23.

RESEARCH REFERENCES

Am. Jur. 2d.

- 8 Am. Jur. 2d, Automobiles and Highway Traffic, § 935.

- 15A C.J.S., Common Law, § 1.