Flanagan v. State, A95A1371

• Decision Date: 27 September 1995
• Docket Number: No. A95A1371,A95A1371
• Citation: 462 S.E.2d 469,218 Ga.App. 598
• Parties: FLANAGAN v. The STATE.
• Court: Georgia Court of Appeals

Page 469

462 S.E.2d 469

218 Ga.App. 598

FLANAGAN v. The STATE.

No. A95A1371.

Court of Appeals of Georgia.

Sept. 27, 1995.

Valpey & Walker, Gregory W. Valpey, Gainesville, for appellant.

Lydia J. Sartain, District Attorney, Lee Darragh, Assistant District Attorney, Gainesville, for appellee.

POPE, Presiding Judge.

Defendant Charles Flanagan was convicted of child molestation following a jury trial at which he represented himself. Defendant had requested appointment of counsel, but he did not meet the county standards for indigency due to his gross monthly income of $1,169, and his request was denied. The trial court advised defendant to retain counsel and gave him time to do so. Defendant and his family contacted several attorneys and found they needed at least $5,000 for anyone to take the case. Although defendant was able to borrow some money from his employer and tried to borrow more from family members, he could not come up with this amount. He therefore appeared without counsel on the day of trial, and asked the court to consider appointing an attorney to represent him. The court denied this request, and defendant--who claims that he is almost illiterate--went to trial pro se.

In a motion for new trial, defendant (then represented by counsel) argued that the trial court erred in denying defendant's request for appointed counsel and proceeding to trial without first ascertaining whether defendant had exercised reasonable diligence in attempting to retain counsel. The trial court took evidence on the reasonable diligence issue at a hearing on the motion for new trial. In its order, however, the court denied defendant's motion without considering defendant's diligence, holding that defendants like Flanagan who do not meet the indigency standard but nonetheless are unable to retain counsel have no recourse, regardless of how diligent they are: "Unfortunately, defendant falls into 'that class of citizens which cannot reasonably hire counsel, as a practical matter, and is not entitled to appointed counsel, as a legal matter.' Smith v. State, 211 Ga.App. 567, 571 (440 SE2d 44) (1993) (Beasley, P.J., dissenting), rev'd 264 Ga. 634 (452 SE2d 90) (1994)." We conclude that while a defendant who is not indigent is not automatically entitled to appointed counsel, he is entitled to have the trial court consider his request for appointed counsel based on the individual circumstances of his case; and the defendant's diligence in attempting to retain counsel would be one circumstance to consider. Thus, the trial court erred in denying defendant's request without considering the circumstances of his case, including his diligence.

We have repeatedly held that while the court must provide for representation of an indigent criminal defendant, see OCGA § 17-12-4, it is not obligated to appoint counsel for a defendant, such as Flanagan, ¹ who is not indigent. See, e.g., Everman v. State, 203 Ga.App. 350(1), 416 S.E.2d 861 (1992); Burnett v. State, 182 Ga.App. 539, 540(1), 356 S.E.2d 231 (1987). Yet the court does have some obligations with respect to a non-indigent defendant appearing before it pro se: " '[W]hen presented with a non-indigent defendant who has appeared for trial without retained counsel, the trial judge has a duty to delay the proceedings long enough to ascertain whether the defendant has acted with reasonable diligence in obtaining an attorney's services and whether the absence of an attorney is attributable to reasons beyond the defendant's control.' [Cit.]" Houston v. State, 205 Ga.App. 703, 704, 423 S.E.2d 431 (1992). Accord Callaway v. State, 197 Ga.App. 606, 398 S.E.2d 856 (1990); Burnett, 182 Ga.App. at 539(1), 356 S.E.2d 231 (1987).

The court's duty to examine the defendant's diligence is based on the right to counsel, which non-indigent as well as indigent defendants have, rather than the right to appointed counsel, which they do not. The State suggests Flanagan voluntarily chose to represent himself after being warned of the consequences of doing so, see Kirkland v. State, 202 Ga.App. 356, 414 S.E.2d 502 (1991), and therefore waived his right to counsel. But from our review of the record, particularly defendant's colloquy with the court immediately prior to his trial, it is clear that defendant preferred to have an attorney and only "chose" to represent himself because he could not afford one. See also Hasty v. State, 215 Ga.App. 155(2), 450 S.E.2d 278 (1994).

The Houston line of cases, holding that the court should determine whether the non-indigent defendant was reasonably diligent, all involved the issue of whether the court should have delayed the trial to allow the defendant to continue his attempts to retain counsel. This is different, of course, from the issue raised by this defendant--whether the trial court should have appointed counsel for him despite his non-indigent status. Nonetheless, the reasoning of these cases leads naturally to the question underlying Flanagan's argument: If a court must grant a continuance to allow a reasonably diligent non-indigent defendant more time to retain an attorney, what must the court do if, even with the continuance, he still has not been able to obtain counsel?

The answer is found in Uniform Superior Court Rules 29.4 and 29.5. While the court does not have...