Smith v. Greek, 25662
Decision Date | 07 May 1970 |
Docket Number | No. 25662,25662 |
Citation | 175 S.E.2d 1,226 Ga. 312 |
Parties | S. Lamont SMITH, Warden v. George Wayne GREEK. |
Court | Georgia Supreme Court |
Syllabus by the Court.
1. The finding of the trial judge that petitioner did not have the benefit of effective counsel in his trial by reason of the failure of the court to continue on the ground that counsel was unprepared is supported by the evidence.
Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Exec. Asst. Atty. Gen., Marion O. Gordon, Courtney Wilder Stanton, Asst. Attys. Gen., Atlanta, B. Daniel Dubberly, Jr., Deputy Asst. Atty. Gen., Glennville, Dorothy T. Beasley, Deputy Asst. Atty. Gen., Atlanta, for appellant.
Hendrix & Lee, Brunswick, for appellee.
This appeal is from an order setting aside the conviction and sentence of petitioner George W. Greek, in a habeas corpus proceeding.
Greek, in his petition for the writ, filed in Tattnall Superior Court, alleged that Smith, Warden of Georgia State Prison, was illegally detaining him by reason of a sentence imposed upon him on July 27, 1968, for a term of 18 years under an indictment in Ware Superior Court charging him with the offense of burglary. He alleged that the conviction and sentence were illegal and void because, (a) no notice of arraignment as required by Code Ann. § 27-1401 was served upon him or his counsel prior to the date of arraignment, and (b) the denial by the trial judge of his motion for a postponement or a continuance of the case denied him a fair trial and benefit of counsel, contrary to stated provisions of the Federal and State Constitutions.
The Warden's response denied the material allegations of the complaint.
On the hearing, a copy of the transcript of the proceedings of the trial of Greek in Ware Superior Court was introduced in evidence. The trial judge also heard oral testimony from Greek, his attorney, hendrix, his former attorney, M. C. Pritchard, and from the respondent's witnesses.
At the conclusion of the hearing the trial judge entered his findings of fact, one of them being: 'However, accused is entitled to the assistance of counsel at every critical stage in a criminal prosecution. A critical stage in a criminal prosecution is one in which a defendant's rights may be lost, defenses waived, privileges claimed or waived or one in which the outcome of the case is substantially affected in some other way. The testimony in this case shows, by Mr. Hendrix, that petitioner was not adequately and ably represented due to the short period of time in which he had to prepare for trial and due to his physical disability. This is borne out by petitioner's first attorney, Mr. Pritchard, who stated, on page 14 of the transcript of this trial that,
For reasons that follow we affirm.
The facts as they appear from the record of Greek's trial and the oral testimony on the habeas corpus hearing are: After Greek's arrest in June, 1968, he employed M. C. Pritchard, an attorney, to represent him. After his indictment in July, on the charge of burglary, pritchard was notified by the prosecuting attorney that Greek would be arraigned on July 24. Pritchard appeared with Greek at that time, but Greek was not arraigned on that date. At that time, pritchard informed the court that he was withdrawing from the case because his fee had not been paid. Pritchard suggested to the court that Greek's arraignment be postponed until he could engage another lawyer. The trial court informed Greek to be ready for trial on the next day, July 25. The record shows that on Saturday afternoon, July 27, the case of the State of Georgia versus Greek was called and the following took place:
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