McCraney v. State
Decision Date | 11 April 1979 |
Docket Number | No. 3-1078A273,3-1078A273 |
Citation | 388 N.E.2d 283,180 Ind.App. 190 |
Parties | Larry Charles McCRANEY, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Appellate Court |
Diane Dickinson Brown, Highland, for appellant.
Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Larry Charles McCraney appeals his conviction of theft for which he was sentenced for a determinate period of four years.
Defendant alleges that the trial court erred in refusing his motion for a continuance requested the morning of trial. Denial of a motion for a continuance based upon nonstatutory grounds will not be reversed unless a clear abuse of discretion has been demonstrated. Massey v. State (1978), Ind., 371 N.E.2d 703.
The record discloses that the trial court appointed pauper counsel for defendant on March 9, 1978. On March 28, Chris Gielow entered his appearance as pauper counsel. On May 10, 1978, the trial was set for June 12, 1978. Three days before the trial date a private attorney contacted the trial judge to request a continuance so that he could represent the defendant. The judge denied his request but advised him that he could enter an appearance. On the day of trial, defendant moved for a continuance in order to enable him to employ private counsel. Defendant asserted that funds to hire an attorney became available only three days before trial. However, no private counsel appeared for the defendant and the trial court denied his motion.
It has been recognized that a defendant charged with a felony must be allowed representation of counsel. Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct 792, 9 L.Ed.2d 799. While an accused should have an opportunity to secure counsel of his own choosing when he is financially able to do so, See: Page v. State (1956), 235 Ind. 628, 137 N.E.2d 405, it is nonetheless imperative that he exercise this right of selection at an appropriate stage of the proceedings. Atkins v. State (1977), Ind.App., 370 N.E.2d 985. The Supreme Court of Indiana expressed its disapproval toward motions to substitute counsel tendered on the trial date in Magley v. State (1975), 263 Ind. 618, 335 N.E.2d 811.
"We note also that the trial court may refuse to allow either the rich or the poor man to replace his counsel during or immediately before trial, because such a substitution would require the court to grant a continuance." 335 N.E.2d at 816.
In Smith v. State (1975), Ind.App., 330 N.E.2d 384, the trial court's refusal to allow defendant a continuance on the day of trial to substitute counsel was held not to be an abuse of discretion. The court observed:
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