Chamlee v. State, 65505

• Decision Date: 04 May 1983
• Docket Number: No. 65505,65505
• Citation: 166 Ga.App. 696,305 S.E.2d 369
• Parties: CHAMLEE v. The STATE.
• Court: Georgia Court of Appeals

Page 369

305 S.E.2d 369

166 Ga.App. 696

CHAMLEE v. The STATE.

No. 65505.

Court of Appeals of Georgia.

May 4, 1983.

Rehearing Denied May 20, 1983.

Howard W. Jones, Calhoun, for appellant.

Darrell E. Wilson, Dist. Atty., Gerard P. Verzaal, Asst. Dist. Atty., for appellee.

James C. Bonner, Jr., Decatur, Jerry L. Causey, Jackson, amicus curiae.

SOGNIER, Judge.

Appellant's probation was revoked for attempted theft and leaving the state without authority, and he appeals on the general grounds. He also contends the trial court erred by revoking his probation for committing a crime which was not alleged in the state's petition for revocation, and by refusing to appoint counsel to represent him on this appeal. Lastly, he attacks his original conviction in 1981 resulting in his probated sentence.

1. Appellant acknowledged at the hearing that he went to Tennessee without authority. As to the attempted theft, a person fitting appellant's description was seen by police in Calhoun, Georgia less than 100 yards from where an attempted theft of hubcaps occurred. When appellant was arrested later the same night in Tennessee, 16 hubcaps were in the trunk of the car in which appellant was riding.

Only slight evidence is necessary to support a revocation of probation, Jones v. State, 153 Ga.App. 411, 412, 265 S.E.2d 334 (1980), and appellant's acknowledgment that he left the state without authority, standing alone, is sufficient to support the revocation.

2. Appellant contends the trial court "convicted" him for possessing 16 hubcaps and he was not charged with theft of those hubcaps. However, the trial judge stated specifically that appellant's possession of the hubcaps was only one circumstance which the judge considered in concluding that appellant was one of two men involved in an attempted theft of a hubcap in Calhoun, Georgia. Thus, appellant's contention is not supported by the record, and this court will not consider factual representations in a brief which do not appear in the record. Gray v. State, 156 Ga.App. 117, 119(3), 274 S.E.2d 115 (1980).

3. Pursuant to appellant's request, his appointed counsel at the revocation hearing presented a written request to the trial court that he be appointed to represent Chamlee on this appeal. Appellant contends the denial of that request was error.

The United States Supreme Court has held that an indigent probationer should be provided counsel on request at a probation revocation hearing based on a claim that (a) he has not committed the alleged violation, or (b) even if he does not contest the violation there are substantial reasons which justified or mitigated the violation, and that the reasons therefor are complex or difficult to develop or present. Gagnon v. Scarpelli, 411 U.S. 778, 790-791, 93 S.Ct. 1756, 1763-1764, 36 L.Ed.2d 656 (1973). However, appellant here was provided counsel at his revocation hearing, so Gagnon is not applicable to the error enumerated by appellant. The issue in the instant case is whether an indigent probationer is entitled to appointed counsel on appeal.

Subsequent to the decision in Gagnon, our appellate courts have held that the rule in Georgia is that an indigent is not entitled to appointed counsel at his probation revocation hearing. Foskey v. Sapp, 237 Ga. 788, 789-790, 229 S.E.2d 635 (1976); Nalley v. State, 147 Ga.App. 634, 635, 249 S.E.2d 685 (1978). A fortiori, an indigent probationer is not entitled to counsel on appeal. Accordingly, this enumeration is without merit.

4. Lastly, appellant contends the indictment on which he was convicted in 1981, based upon his plea of guilty, was void. "As this complaint is raised for the first time on appeal, it presents nothing for review. [Cit.] Challenge to the indictment must be made prior to the entry of the verdict. [Cit.]" Scott v. State, 147 Ga.App. 679(1), 250 S.E.2d 15 (1978).

Judgment affirmed.

QUILLIAN, P.J., concurs, POPE, J., concurs specially.

POPE, Judge, concurring specially.

I concur fully in Divisions 1, 2 and 4 of the opinion, and while agreeing with the result reached in Division 3, I am compelled to offer the following comments. The broad rule that an indigent probationer has no right to the assistance of counsel at a revocation hearing has been modified by the United States Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), holding that counsel at a probation revocation hearing should be determined on a case-by-case basis applying certain general guidelines as to whether the assistance of counsel is constitutionally necessary. Parrish v. State, 164 Ga.App. 575(2), 298 S.E.2d 558 (1982); see Hunter v. State, 139 Ga.App. 676(1), 229 S.E.2d 505 (1976). Further, "[i]n every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record." Gagnon v. Scarpelli, supra, 411 U.S. at 791, 93 S.Ct. at 1764. However, as noted in the opinion, the issue here involves a request for counsel on appeal from a probation revocation hearing; counsel had been appointed for appellant at the hearing.

In deciding whether ...