Thornton v. Ault, 29107
| Decision Date | 25 October 1974 |
| Docket Number | No. 29107,29107 |
| Citation | 210 S.E.2d 683,233 Ga. 172 |
| Parties | Vincent X. THORNTON v. Allen AULT. |
| Court | Georgia Supreme Court |
Syllabus by the Court
It was error to remand the appellant to the custody of the respondent warden in the face of uncontradicted evidence that his appointed counsel at his criminal trial failed to advise him of the appellate rights as an indigent, and that he was otherwise unaware of them.
James C. Bonner, Jr., Jackson, for appellant.
Arthur K. Bolton, Atty. Gen., Lois F. Oakley, Atlanta, for appellee.
Vincent X. Thornton appeals from the denial of his petition for habeas corpus in the Superior Court of Butts County upon the ground that it was error to remand him to the custody of the respondent warden in the face of uncontradicted evidence that his appointed counsel at his criminal trial for armed robbery failed to advise him of his appellate rights as an indigent, and that he was otherwise unaware of them.
Upon the habeas corpus hearing the appellant testified that his attorney did not tell him that he had the right to appeal, and that he did not 'know anything about appeal.'
A deposition of the attorney was read into evidence stating in essence that he was appointed to represent the appellant after he was indicted; that he had no discussion that the appellant with regard to an appeal as he was of the opinion that it would be an exercise in futility, and that the appellant made no request to appeal his case.
In our view, under these facts the appellant was denied his rights under the Sixth Amendment of the Constitution of this State and of the United States.
It is abundantly clear that indigents must be furnished counsel at every critical stage of criminal proceedings, including the first appeal, under the Sixth and Fourteenth Amendments. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R. 733; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811.
In confronting the issue of whether a convicted defendant has been deprived of his right to appeal in violation of these constitutional amendments, the Fifth Circuit Court of Appeals has taken two approaches, depending upon whether his attorney was court appointed or whether he was privately retained.
This was succinctly explained by Judge Morgan in Gregory v. United States, 446 F.2d 498, 499 (5th Cir. 1971): ...
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Hudson v. State
...affidavit stating he did not advise defendant of his right to appeal because he "saw no valid ground for appeal." Thornton v. Ault, 233 Ga. 172, 210 S.E.2d 683 (1974).2 The record does not explain the delay between the grant of the out-of-time appeal and the denial of the motion for new tri......
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...her counsel, whose competency on the trials was not attacked, had failed to advise her of her rights of appeal. In Thornton v. Ault, 233 Ga. 172, 210 S.E.2d 683 (1974), this court implied, if not held, that failure to advise a criminal defendant of his appellate rights as an indigent is not......
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...with respect to the appeal procedure continued to be the source of out-of-time appeal grants in subsequent cases. See Thornton v. Ault, 233 Ga. 172, 210 S.E.2d 683 (1974); Hopkins v. Hopper, 234 Ga. 236, 215 S.E.2d 241 (1975); Kreps v. Gray, 234 Ga. 745, 218 S.E.2d 1 (1975); Bell v. Hopper,......
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...(2005). 140. See Gideon v. Wainwright, 372 U.S. 335, 344 (1963); Douglas v. California, 372 U.S. 353, 357 (1963); Thornton v. Ault, 233 Ga. 172, 173, 210 S.E.2d 683, 684 (1974). 141. See Ga. Const. art. VI, Sec. 5, para. 3; Ga. Const. art. VI, Sec. 6, para. 2; Ga. Const. art. VI, Sec. 6, pa......