Blair v. State, 65856
| Decision Date | 28 April 1983 |
| Docket Number | No. 65856,65856 |
| Citation | 166 Ga.App. 434,304 S.E.2d 535 |
| Parties | BLAIR v. The STATE. |
| Court | Georgia Court of Appeals |
Jack P. Friday, Jr., Savannah, for appellant.
Dupont K. Cheney, Dist. Atty., Douglas A. Datt, Asst. Dist. Atty., for appellee.
Defendant was convicted for offenses involving the violation of the Georgia Controlled Substances Act in four counts in that he did possess (1) more than one ounce of marijuana; (2) tetrahydrocannabinols; (3) phencyclidine (PCP); and (4) diazepam. Defendant appeals. Held:
1. Defendant's first enumeration of error contends the trial court erred in denying the defendant's motion for continuance because of the absence of counsel and that he had been denied his 6th Amendment right to counsel and his 5th Amendment right to due process as guaranteed by the state and federal constitutions. Apparently the court was notified approximately a week before trial that one of the attorneys representing the defendant would be absent and some question arose as to whether or not the case would be heard. However, a motion for continuance was made and filed on December 14, 1981, the date of the trial, pursuant to OCGA § 17-8-33 (formerly Code § 27-2002) because defendant's attorney had been "subpoenaed to appear" in a trial in South Carolina, said trial probably to last from one to two weeks. When the case sub judice was called in the trial court an attorney for the defendant announced not ready as he was not lead counsel and that in signing the not guilty plea for counsel he was appearing on behalf of the absent counsel. He further stated he had not been hired by the defendant, as he was obtained by absent counsel to assist him, and he asked for a continuance based on this ground, as well as the absence of defendant's counsel which motion for continuance had been filed in the case on the morning that the case was called. The court noted that in the record of this case this counsel, who was present, was counsel of record for the defense and overruled the motion for a continuance. The court then stated that this counsel had been present at every appearance and the court had recognized him as counsel for defendant. The court further stated that the case would come on for trial at 9:00 a.m. on Thursday (December 17, 1981) but that a jury would be selected at this time (December 14, 1981). It is noted that defendant's brief reflects his absent lead counsel "was in Myrtle Beach, South Carolina trying a major importation case which involved some fifteen attorneys and twenty-five defendants.".
A motion for continuance is addressed to the sound discretion of the trial court, and a denial will not be disturbed in the absence of a manifest abuse of discretion. See Rutledge v. State, 152 Ga.App. 755, 757(1), 264 S.E.2d 244; Dutton v. State, 228 Ga. 850, 851(2), 188 S.E.2d 794. Further, the absence of counsel is not a favored excuse for not proceeding to trial and excuses of this sort should be discountenanced. See Rutledge v. State, 152 Ga.App. 755, 757, 264 S.E.2d 244, supra; Austin v. State, 160 Ga. 509(1), 128 S.E. 791. In this instance at the preliminary hearing defendant was represented by the counsel appearing in his behalf at the trial. At that time the court asked counsel if the defendant was represented by him. This counsel answered in the affirmative that the defendant was represented by both counsel, stating "I'm co-counsel on it" at which time the defendant was not present and this counsel waived his presence. We note that under OCGA §§ 9-10-155 and 17-8-24 (formerly Code § 81-1413) that the illness or absence, from providential cause, "of counsel where there is but one, or of the leading counsel where there are more than one, shall be a sufficient ground of continuance, provided that the party making the application" for a continuance will swear that he cannot go safely to trial without the services of the absent counsel, and that he expects absent counsel's services at the next term, and that the application is not made for delay only. None of the statutory requirements necessary for the granting of a continuance were put forth by co-counsel when the case was called. Further, there has been no showing here that the defendant was injured by the absence of his lead counsel, and we find no merit in this...
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...representation by the associate of the lead attorney did not violate Cox's constitutional right to counsel. See Blair v. State, 166 Ga.App. 434(1), 304 S.E.2d 535 (1983). Although Cox made a post-trial claim that he did not approve of the substitution, he did not object when the attorney in......
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