Murphy v. Balkcom
Decision Date | 03 January 1980 |
Docket Number | No. 35541,35541 |
Citation | 245 Ga. 13,262 S.E.2d 784 |
Parties | MURPHY v. BALKCOM. |
Court | Georgia Supreme Court |
Christopher J. Hamilton, Athens, for appellant.
Arthur K. Bolton, Atty. Gen., Mary Beth Westmoreland, Staff Asst. Atty. Gen., for appellee.
Petitioner, convicted of possession of a controlled substance, seeks an out-of-time appeal contending that he was not informed of his right to appeal by his attorney or by the trial court after his conviction. He also contends that he requested his attorney to file an appeal but that the attorney took no action. The attorney testified by deposition at the habeas hearing stating that while he had no independent recollection of the case, it was and had been his usual custom and practice to inform his clients of their right to appeal following a conviction. If the client was indigent, his practice was to go to the judge and inform him that the client wanted an appeal and that counsel was always appointed in such cases. He did not recall any request for appeal in this case.
The assistant district attorney testified by deposition at the habeas hearing stating that he understood that petitioner's attorney had informed petitioner of his right to appeal but that he (petitioner) had decided to forgo the appeal and instead apply to the sentence review panel, which he did.
After hearing all the evidence, the habeas judge, being the finder of facts, believed the state's witnesses and disbelieved petitioner and thus denied habeas relief. To reverse the decision of the habeas court, we would first have to overrule Jackson v. Hopper, 243 Ga. 41, 252 S.E.2d 467 (1979) which we find controlling. This we decline to do. In regard to petitioner's claim that the record does not reflect a knowing waiver of his right to appeal, we note that the Fifth Circuit Court of Appeals has recently held:
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Debelbot v. State
...counsel did not advise defendant, as defendant claimed, that his juvenile record could be used to impeach him); Murphy v. Balkcom, 245 Ga. 13, 13, 262 S.E.2d 784 (1980) ("[a]fter hearing all the evidence, the habeas judge, being the finder of facts, believed the state’s witnesses and disbel......
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Hicks v. Scott, S00A1790.
...is entitled only to the same assistance in obtaining appellate review as any other losing civil litigant. Compare Murphy v. Balkcom, 245 Ga. 13, 262 S.E.2d 784 (1980) (informing criminal defendant of right to appeal conviction and sentence). Inclusion of the information regarding appeal was......
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Bridges v. Johnson
...the defendant's contention that "a sentence review is a `first appeal' as a matter of right"); see also Murphy v. Balkcom, 245 Ga. 13, 14, 262 S.E.2d 784, 785 (1980) (recognizing a distinction between an appeal as of right and an application to the sentence review panel). Accordingly, Bridg......
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Butts v. State
...supra, 227 Ga.App. at 65, 488 S.E.2d 119. 9. Jackson v. Hopper, 243 Ga. 41, 42, 252 S.E.2d 467 (1979); accord Murphy v. Balkcom, 245 Ga. 13, 14, 262 S.E.2d 784 (1980). 10. Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646 11. See Penrod v. State, 233 Ga.App. 532, 533, 504 S.E.2d 757 (1998) (......