Shaw v. The State., 163 Ga. App. 615, 294 S.E.2d 676 (1982)
Linked as:
Text
Christopher H. Coates, M. Laughlin McDonald, Neil T. Bradley, for appellant.
Appellant was indicted for aggravated assault on a peace officer, robbery and simple battery. The jury in appellant's first trial was unable to reach a verdict and a mistrial was declared. Appellant was retried and found guilty on all three counts. Appellant appeals from the denial of his motion for new trial.
1. During his first trial which resulted in a mistrial on April 30, 1981, appellant was represented by retained counsel. The same attorney was also representing appellant in several pending but unrelated misdemeanor cases. During the week prior to July 27, 1981, this attorney, as counsel of record, was informed that appellant's retrial would be held the following week. Appellant and the same attorney appeared in court on the morning of July 27, 1981. When appellant's case was called on that day, the state announced that it was ready for trial. However, appellant and the attorney briefly left the courtroom before responding to the call of the case. Upon his return, counsel informed the court that he no longer represented appellant in this case, but would continue to represent him in the misdemeanor cases. Following this announcement, the trial court informed appellant that his case would be set for trial on Thursday, July 30, 1981, three days later. Apparently, appellant contacted the trial court on the afternoon of July 27 to state that the attorney he had retained to represent him in his retrial was on vacation and would not be available for a trial to begin in three days. The trial court again advised appellant that the case was set for July 30, 1981, and that he should be present at that time with counsel to represent him.
On July 30, 1981, appellant appeared in court without counsel. At that time, appellant informed the trial court that he had retained the services of an attorney on May 15, 1981, who "just told me yesterday he wouldn't . . . he couldn't get here." In point of fact, the secretary of the attorney whom appellant had ostensibly "retained" had been in contact with the district attorney and the clerk of the court. Apparently, the gist of the message relayed to the district attorney and the court was that the attorney, who was on vacation out of state, did not formally represent appellant but that appellant did want to secure his services for the retrial. It was subsequently established that appellant had conferred with the attorney and had partially paid his retainer fee. However, not having been paid the balance of his fee and not having received the materials requested by him from appellant, the attorney had not formally entered onto the active representation of appellant. Apparently, appellant had not been in touch with his "retained" counsel for some weeks prior to the retrial and had only tried to contact him on July 27, after the case had been called.
With this factual background the trial court declined to grant the motion for continuance which was based upon the absence of the appellant's "retained" counsel. Instead, the trial court appointed the public defender to assist appellant during the course of the trial. The denial of the motion to continue the case in order that "retained" counsel could appear is enumerated as error.
Appellant was not incarcerated pending his retrial, and was not indigent. Appellant had discharged his original attorney, a fact which was either not accomplished or at least not made known to the trial court until the call of the case. When the discharge of his former counsel was announced to the trial court, appellant was advised that he would be tried in three days and to secure legal representation. See generally Hendrix v. State,
Appellant also asserts that it was error for the trial court to appoint the public defender to advise him during the trial. "We recognize that a defendant must not be coerced into accepting counsel not of his own choosing and that he may proceed to defend himself without counsel. [Cit.]" Rogers v. State,
2. Appellant enumerates as error the denial of a continuance predicated upon the absence of four defense witnesses for whom subpoenas had been issued but not served by the sheriff's department. It does not appear that a motion for continuance on this ground was ever made at trial. See Holland v. State,
Appellant has a constitutional guarantee of compulsory process to obtain the testimony of witnesses. See Code Ann. 2-111; Murphy v. State,
4. There was no violation of the rule of sequestration when, apparently without objection, the victim was allowed to remain in the courtroom to aid in the presentation of the state's case. Dye v. State,
5. Appellant enumerates as error the denial of his motion to quash and dismiss the indictment. On appeal, he asserts exceptions to the indictment which were not raised in the court below. Having failed to raise these exceptions below, appellant is deemed to have waived them. Peppers v. Balkcom,
6. Appellant asserts that his sentence constitutes cruel and unusual punishment. " '[W]here the sentences imposed are within the statutory limits, as they are here, they are not unconstitutional.' [Cit.]" Johnson v. State,
Gary C. Christy, District Attorney, Richard E. Thomas, Assistant District Attorney, for appellee.
1982
Sponsored links
This document cites
- Supreme Court of Georgia - JOHNSON v. THE STATE., 246 Ga. 126, 269 S.E.2.d 18 (1980)
- Supreme Court of Georgia - HUGHES v. THE STATE., 228 Ga. 593, 187 S.E.2.d 135
- Supreme Court of Georgia - SMITH v. THE STATE, 224 Ga. 750, 164 S.E.2.d 784 (1968)
- Supreme Court of Georgia - DYE v. THE STATE., 220 Ga. 113, 137 S.E.2.d 465 (1964)
- Supreme Court of Georgia - PEPPERS v. BALKCOM, Warden., 218 Ga. 749, 130 S.E.2.d 709 (1963)
See other documents that cite the same legislation
