Nalley v. State, 56469
| Decision Date | 18 October 1978 |
| Docket Number | No. 56469,56469 |
| Citation | 147 Ga.App. 634,249 S.E.2d 685 |
| Parties | NALLEY v. The STATE. |
| Court | Georgia Court of Appeals |
Derrell J. Nalley, pro se.
Robert E. Keller, Dist. Atty., Michael D. Anderson, Asst. Dist. Atty., for appellee.
Probation revocation. Appellant Nalley filed a pro se notice of appeal enumerating three errors: that he was denied the assistance of counsel, denied counsel of his own choice, and denied the right to subpoena an essential witness. Held:
Though a hearing was held in this case, no transcript was requested nor was a transcript prepared. Appellant in his brief admits that he discussed his revocation hearing with an attorney of his choice but could not pay the retainer fee. There being no transcript, there is no indication that Nalley requested at the hearing the assistance of counsel. Neither does the record indicate that Nalley moved in writing for assistance of counsel or that the court was ever aware that Nalley wished counsel. Likewise, the record is silent as to any attempt by Nalley to subpoena a witness. In the absence of a transcript, we cannot determine whether the trial court was aware of the existence of the absent witness or considered the assertions of Nalley as to what that witness might say.
The record contains charges alleging that appellant violated the terms of his probation and shows that a hearing was held to determine the validity of those charges. The order of the trial court states that after a full hearing, it found a violation of the terms of parole. Where, as here, there is no transcript, the appellate court is bound to assume that the trial judge's findings are supported by sufficient competent evidence. Johnson v. Scott, 141 Ga.App. 645, 234 S.E.2d 184. Moreover, the rule in this state is that an indigent is not entitled to appointed counsel at his probation revocation hearing. Foskey v. Sapp, 237 Ga. 788, 229 S.E.2d 635. The record does not support Nalley's contention that he was denied counsel of his own choosing. There is a presumption in favor of the regularity and legality of all proceedings in the superior court. Bible v. Marra, 226 Ga. 154, 159, 173 S.E.2d 346. Because this presumption cannot be rebutted by a direct appeal involving an issue which apparently was not judicially determined by the trial court, the contention by Nalley that he was denied counsel of his own choosing is without merit. Touchton v. Stewart, 229 Ga. 303, 190...
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Salter v. State
...presumption in favor of the regularity and legality of all proceedings in the superior court." (Emphasis supplied.) Nalley v. State, 147 Ga.App. 634, 635, 249 S.E.2d 685. Accordingly, I find the majority's position inadequate to warrant departure from the precedent of Brown and Santone, 2. ......
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Dawson v. State, 75605
...absence of evidence to the contrary, the trial court fulfilled its obligation under the law. OCGA § 24-4-24(b)(1); Nalley v. State, 147 Ga.App. 634, 635, 249 S.E.2d 685 (1978). See also Hosch v. Pickett, 172 Ga.App. 13, 15, 321 S.E.2d 777 Even if trial counsel did not testify at that hearin......
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Davis v. State, 61825
...presume that after hearing the evidence the trial court correctly exercised its discretion in denying the motion. Nalley v. State, 147 Ga.App. 634, 249 S.E.2d 685 (1978). We find no abuse in the trial court's exercise of its 2. The trial court did not err in denying defendant's motion to qu......
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Chamlee v. State, 65505
...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 4. Lastl......