Terrell v. State

• Decision Date: 18 November 1975
• Docket Number: No. 51404,No. 1,51404,1
• Citation: 136 Ga.App. 848,222 S.E.2d 642
• Parties: H. C. TERRELL v. The STATE
• Court: Georgia Court of Appeals

Page 642

222 S.E.2d 642

136 Ga.App. 848

H. C. TERRELL v. The STATE.

No. 51404.

Court of Appeals of Georgia, Division No. 1.

Nov. 18, 1975.

Rehearing Denied Dec. 3, 1975.

Robert M. Margeson, III, Albany, for appellant.

William S. Lee, Dist. Atty., Daniel MacDougald, III, Asst. Dist. Atty., Albany, for appellee.

WEBB, Judge.

Henry C. Terrell was indicted and convicted for possessing heroin. The only issue on appeal which we find necessary to consider is adequately set forth in special ground 4 of the amended motion for new trial: 'The trial judge erred in denying the motion for continuance, a written copy of said motion of which was duly tendered to the assistant district attorney, Hobart Hind, and the Honorable Judge Asa D. Kelley on the morning prior to trial and is duly recorded on record in the Office of the Clerk of Superior Court of Dougherty County, Georgia. Said motion for continuance was made on or about 9:00 A.M. on the 28th day of May, 1975, primarily on the basis that defense counsel had not received a copy of the transcript of the committal hearing after having specifically requested one from the court reporter, Ms. Inez Thomas, immediately after the committal hearing on May 9, 1975. On the 28th day of May, 1975, the defense counsel, at approximately 9:30 A.M., contacted the office of Ms. Inez Thomas and was advised that it would be ready shortly before 12:00 noon. Defense counsel did, in fact, receive a copy of the committal hearing shortly prior to 12:00 noon on the 28th day of May, 1975, and the trial began at 1:30 P.M. Defendant's counsel did not have adequate time to thoroughly review the transcript of said committal hearing; and therefore, could not effectively prepare and present his defense for defendant, and that the request of a minimum of two (2) days for a continuance was not unreasonable; and therefore, the refusal of this continuance resulted in prejudicial error to the defendant; and therefore, he is entitled to a new trial in said case.'

The State resists this ground by urging, under the authority of Brown v. State, 223 Ga. 76(9), 153 S.E.2d 709, that the transcript need not have been furnished to the accused at all. Accord, Cummings v. State, 226 Ga. 46, 47(1), 172 S.E.2d 395. See also Miller v. State, 224 Ga. 627(1b), 163 S.E.2d 730. While these cases do hold that there is no duty to furnish the accused with the transcript of the commitment hearing, it should be noted that they were decided prior to State v. Houston, 234 Ga. 721, 724, 218 S.E.2d 13, in which our Supreme Court held for the first time that the commitment hearing is a critical stage of the proceedings to which the ruling in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 is applicable. See Davis v. State, 136 Ga.App. 749, 222 S.E.2d 188 (1975) and cits. It therefore seems open to question whether...