McLendon v. State
| Decision Date | 21 January 1971 |
| Docket Number | 3,2,Nos. 1,No. 45719,45719,s. 1 |
| Citation | 180 S.E.2d 567,123 Ga.App. 290 |
| Parties | T. A. McLENDON v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The trial court did not err in dismissing the motion for new trial for lack of prosecution.
2. Continuances because of the absence of counsel, are not favored, and a strict compliance with the law is required, particularly since the matter rests within the sound discretion of the trial court.
(a) When the defendant is out of jail on bond, and has had several months to employ counsel, his neglect in failing to promptly do so is an insufficient ground for the granting of a continuance.
(b) Generally, if counsel is ill when employed, a continuance because of such illness will not be granted.
(c) While the illness or absence of leading counsel from providential cause shall be a sufficient ground for continuance, yet the party making the application must swear that he cannot go safely to trial without the services of such absent counsel, that he expects his services at the next term and that the application for continuance is not made for delay only. Code § 81-1413.
(d) Where no effort is made by counsel to offer sworn testimony in compliance with Code § 81-1413, and the other evidence submitted is insufficient to show an abuse of discretion, the lower court did not err in denying the motions for continuance.
3. The record shows the accused was represented by counsel of his own choosing throughout this case.
4. No harmful error is shown where the court charges a lesser sentence for forgery instead of one which carries a greater sentence therefor.
5. The evidence is sufficient to support the verdict and sentence.
Jackson & Handler, Bernard Parks, Atlanta, for appellant.
Kenneth E. Goolsby, Dist. Atty., Thomson, for appellee.
The defendant appeals from his conviction on four counts of forgery and from the dismissal of his motion for new trial as amended. The main thrust of the appeal is that the trial court erred in denying defendant's motions for a continuance in the case.
The following statement of facts as shown by the transcript and record is necessary for a decision in this case:
A criminal warrant was issued for the defendant in Wilkes County, charging him with forgery, and he gave bond (bail) for his appearance shortly before the grand jury convened in said County at the August term 1967, at which time the grand jury indicted him for forgery. Three months later, at the succeeding term of Wilkes Superior Court, the case was called for trial, notice of arraignment having been previously given defendant. Thus it will be seen that defendant had three full months in which to engage counsel to represent him in said matter.
After the convening of court on Monday morning (first Monday in November, November 6, 1967), when his case was called, defendant stated to the trial judge in open court that his former attorney, Marion Gaines Hill, did not represent him and the judge allowed him until Tuesday morning to secure an attorney. On Tuesday morning the defendant stated that he had not employed an attorney but would have one in about two minutes as he had previously talked to Attorney Lawson E. Thompson relative to employment. Immediately afterwards, Attorney Thompson stated he was employed the night before to represent him in the case of forgery and also in another criminal charge against the defendant in the same court. It is noted here that Thompson also stated he had talked to the defendant on Friday or Saturday. Attorney Thompson moved for a continuance, pleading his own lack of time for preparation, and as a part of the motion to continue, defendant was sworn and testified that he had previously employed attorneys Leroy Johnson of Atlanta and Marion Gaines Hill of New York, to represent him at the August term 1967 (the term at which the indictment was returned), and said attorneys told him his case was 'thrown out of court.' No substantiation of defendant's testimony as to his having been so informed by said attorneys was ever made by either of the attorneys or by any other person.
The trial judge overruled the motion to continue and defendant was placed on trial for another offense (a traffic violation case), being represented therein by Attorney Thompson, which trial consumed the balance of that day.
On the following day the forgery case was again called for trial, and Attorney Thompson announced that he no longer represented defendant, and that his representation terminated at the end of the preceding day. No explanation was given as to why such representation was terminated, and thus it may be fairly inferred that defendant voluntarily discharged said attorney.
Then Attorney Maynard Jackson, of the Atlanta Bar, announced that he was appearing on behalf of defendant for the sole purpose of moving for a continuance because of the absence, through illness, of Attorney Marion Gaines Hill of New York (who was defendant's uncle), stating that Attorney Hill represented defendant. It was shown that Attorney Hill dispatched a telegram from New York to the trial judge, advising that he was ill, with no suggestion as to the duration of his illness or when he would be able to try the case.
Attorney Jackson also suggested that there was a witness of defendant's in New York, but no suggestion was made that he was under subpoena; or that he resided in Wilkes County; or that his testimony was material; or that he was not absent by permission; or that his testimony was expected at the next term of court, or that the motion was not made for the purpose of delay, all of which is absolutely required by Code § 81-1410, as amended (Ga.L.1959, p. 342). The absence of this witness will therefore not be considered further in this discussion.
At no time was a temporary postponement of the case requested by defendant, but the motions were to continue the case for the term.
The trial court stated that defendant had been allowed three months in which to make proper arrangements for representation by counsel, which he felt was sufficient time; and stated further that the defendant had told the trial judge in open court on Monday of that same week that Attorney Marion Gaines Hill did not represent him, and the court did not feel that he should grant a continuance because of Attorney Hill's absence. No showing of any nature or mention was made by defendant as to the reason for the absence of Attorney Leroy Johnson.
It was shown by the State that the prosecutor was an aged man, that he was in poor health; and that the State had present a witness, resident of New York, at the State's expense, having also had him present at the preceding term of court.
The trial court suggested to Attorney Maynard Jackson that he would allow him the opportunity of completing his showing on the motion for continuance by placing sworn testimony in the record, if he desired, but said attorney did not avail himself of said invitation and no sworn testimony whatever was introduced on Attorney Jackson's motion to continue.
Attorney Jackson stated that he himself was not sufficiently prepared to represent defendant, as he had appeared for the sole purpose of moving for a continuance because of the absence of Attorney Hill, but that he would represent the defendant, and the court ordered a recess of 30 minutes additional time, after which the trial proceeded.
The trial resulted in a verdict of guilty under which the defendant was sentenced to serve two years in prison. A motion for new trial was filed, but no copy of this motion or of the rule nisi therein was ever served upon State's counsel. The motion for new trial was amended, and said amendment was served on State's counsel, and the motion remained in a dormant state for the next two years and nine months. Then the trial judge on his own motion, in writing, notified defendant's counsel and State's counsel to appear in Wilkes Superior Court at Washington at 12 noon on August 3, 1970, for a hearing and disposition of defendant's motion for new trial. The notification stated that if the time and place were not convenient to counsel the court would re-schedule the motion for a hearing at an earlier date.
At the time and place for said hearing the court called the case, and no appearance was made by the defendant or his counsel. The State's counsel moved that the case be dismissed for want of prosecution. The court granted this motion and entered an order 'overruling and dismissing the motion for new trial as amended for lack of prosecution.'
1. Did the trial court properly dismiss the motion for new trial when neither defendant nor his counsel appeared at the time and place set for hearing argument, and State's counsel moved for dismissal for want of prosecution? It appears beyond any question that the trial court was correct in granting the State's motion to dismiss. Defendant's brief contends his lawyer appeared about eight minutes later, and had been prevented from attending earlier for providential reasons, to wit: traffic congestion because of work on the highway between Washington and Atlanta, Georgia. There was no motion made before the trial judge to reinstate the dismissed motion for such reason, and no mention of these facts is made in the transcript or record, it appearing only in the brief. But even if a motion to reinstate had been made, work on the highway could not be classified as 'providential reason for delay.' The motion for new trial had already been pending for approximately two years and nine months, and it was incumbent upon defendant or his counsel to appear at the time and place finally set for hearing, especially as the court's order instructed counsel to advise if this date was not convenient and he would re-set it.
If he had made a motion to reinstate, after his counsel reached the courtroom (which he...
To continue reading
Request your trial
-
Keen v. State
...court in refusing to entertain the dilatory motion. See Scott v. State, 151 Ga.App. 840(1), 262 S.E.2d 198 (1979); McLendon v. State, 123 Ga.App. 290(2), 180 S.E.2d 567 (1971).) Under these circumstances, the court had no reason to presume or even suspect a conflict of interest existed. See......
-
Kirk v. State
...matter within the discretion of the trial court, and unless abused, such discretion will not be controlled. [Cits.]" McLendon v. State, 123 Ga.App. 290, 297, 180 S.E.2d 567. "The counsel himself is not, under all circumstances, the judge of whether he was merely indisposed, or whether his i......
-
Johnson v. State
...a party has had several months in which to employ counsel and neglects to do so, no continuance will be granted for such reason." McLendon v. State.22 As there is no direct evidence of the motion or its denial anywhere in the record, we presume the trial court acted 6. Johnson's contention ......
-
Neal v. State
...104, 108(3), 663 S.E.2d 414 (2008). 15. See Mitchell v. State, 282 Ga. 416, 419(4), 651 S.E.2d 49 (2007); McLendon v. State, 123 Ga. App. 290, 298(5), 180 S.E.2d 567 (1971) (physical precedent 16. (Punctuation omitted.) Parker v. State, 277 Ga.App. 155, 157(2), 626 S.E.2d 152 (2006). 17. Se......