Opinion
S91G0120.
DECIDED MAY 10, 1991. RECONSIDERATION DENIED JUNE 26, 1991.
Certiorari to the Court of Appeals of Georgia — 197 Ga. App. 139.
Virgil L. Brown Associates, Bentley C. Adams III, Anne Cobb, for appellant.
William G. Hamrick III, District Attorney, for appellee.
Appellant was convicted in probate court of driving under the influence of alcohol. He appealed that conviction to superior court, which affirmed. On appeal to the Court of Appeals, appellant argued that the probate court's judgment was void because there was no written waiver of jury trial. The Court of Appeals held that the issue had been waived by appellant's failure to raise it in the superior court, and affirmed his conviction. Dossett v. State, 197 Ga. App. 139 (2) ( 398 S.E.2d 24) (1990). We granted certiorari to consider whether the absence from the record of a waiver of jury trial in probate court can be raised in an appellate court if not first raised in superior court.
This case is controlled by Nicholson v. State, 261 Ga. 197 ( 403 S.E.2d 42) (1991). Under the holding of that case, Dossett's failure to raise in the probate court the issue of the absence of a waiver of jury trial prevents appellate review of the issue. The implication in the Court of Appeals' opinion in this case that a defendant may preserve this issue by raising it in the superior court is inconsistent with our opinion in Nicholson v. State, and is disapproved.
Judgment affirmed. All the Justices concur, except Smith, P. J., and Benham, J., who dissent.
DECIDED MAY 10, 1991 — RECONSIDERATION DENIED JUNE 26, 1991.
For the reasons stated in my dissent in Nicholson v. State, 261 Ga. 197 ( 403 S.E.2d 42) (1991), I respectfully dissent to the judgment in this case.
I am authorized to state that Presiding Justice Smith joins in this dissent.