(Code 1981, §17-12-23, enacted by Ga. L. 2003, p. 191, § 1; Ga. L. 2006, p. 710, § 5/SB 203; Ga. L. 2008, p. 846, § 30/HB 1245; Ga. L. 2011, p. 91, § 12/HB 238.)
Law reviews.- For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 61 (2006). For comment on Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972), establishing an indigent's right to appointed counsel in nonfelony criminal cases, see 22 J. of Pub. L. 191 (1973). For comment, "The Guiding Hand of Counsel: Effective Representation for Indigent Defendants in the Cordele Judicial Circuit," see 66 Mercer L. Rev. 781 (2015).
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. §§ 17-12-4 and17-12-11 are included in the annotations for this Code Section.
Duty exists whether felony or misdemeanor charged.
- Former O.C.G.A. § 17-12-4 required that counsel be appointed for indigent defendants, whether charged with a felony or misdemeanor, if such persons could be imprisoned under the state law of Georgia if found guilty. Lowrance v. State, 183 Ga. App. 421, 359 S.E.2d 196 (1987) (decided under former O.C.G.A. § 17-12-4).
Procedure used by county in appointing attorney for indigent did not violate due process since, in the event the public defender's office was unavailable, attorneys were appointed from an alphabetical list in an equitable manner and special considerations were given in death penalty cases. Lewis v. State, 255 Ga. 101, 335 S.E.2d 560 (1985) (decided under former O.C.G.A. § 17-12-4).
Court's discretion.
- While the court does not have the duty to appoint counsel for defendants who do not meet the indigency standard, the court does have the discretion to do so and this discretion must be affirmatively exercised, based on the individual circumstances of each case; the court cannot simply deny all such requests as a matter of policy. Flanagan v. State, 218 Ga. App. 598, 462 S.E.2d 469 (1995) (decided under former O.C.G.A. § 17-12-4).
Trial court erred in denying a nonindigent defendant's request for appointed counsel and proceeding to trial without first ascertaining whether the defendant exercised reasonable diligence in attempting to retain counsel or considering other special circumstances. Flanagan v. State, 218 Ga. App. 598, 462 S.E.2d 469 (1995) (decided under former O.C.G.A. § 17-12-4).
Trial court did not abuse the court's discretion in refusing to appoint counsel for a nonindigent defendant. Pierce v. State, 222 Ga. App. 245, 474 S.E.2d 112 (1996) (decided under former O.C.G.A. § 17-12-4).
If a trial court did not hold a plea withdrawal hearing and did not make a record of the court's determination of the defendant's indigency for appeal, the appellate court could not determine if the trial court abused the court's discretion or followed the procedures of O.C.G.A. §§ 17-12-2(5),17-12-31,17-12-4(a) and Ga. Unif. Super. Ct. R. 29.2, 29.3, 29.5. Schlau v. State, 261 Ga. App. 303, 582 S.E.2d 243 (2003) (decided under former O.C.G.A. § 17-12-4).
Trial court's failure to delay trial long enough to ascertain whether retained defense counsel's absence was attributable to reasons beyond the defendant's control violated the defendant's right to counsel of the defendant's choosing. Turman v. State, 272 Ga. App. 570, 613 S.E.2d 126 (2005) (decided under former O.C.G.A. § 17-12-11).
Trial court did not abuse the court's discretion by proceeding with trial and refusing to delay the proceedings after concluding that the defendant did not exercise reasonable diligence in procuring counsel because the record showed that the defendant repeatedly claimed, over a period of three months, that the defendant was in the process of retaining counsel, and the defendant was advised on multiple occasions by the trial court to make a better effort to do so. Hatcher v. State, 320 Ga. App. 366, 739 S.E.2d 805 (2013).
Effect of execution of eligibility form for court-appointed counsel.
- Defendant's execution of an "eligibility affidavit form," essentially a financial statement made for the purpose of informing county indigent defense program of an accused's financial condition, constituted a request for court-appointed counsel once judicial proceedings were initiated and did not constitute an invocation of the right to counsel for Fifth Amendment purposes; thus, a statement given to police while in custody was not taken in violation of the defendant's constitutional rights because at the time the defendant completed the form, no adversarial criminal proceeding had been initiated against the defendant and no Sixth Amendment concerns had come into play; reversing Hatcher v. State, 212 Ga. App. 46, 441 S.E.2d 673 (1994). State v. Hatcher, 264 Ga. 556, 448 S.E.2d 698 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1405, 131 L. Ed. 2d 291 (1995) (decided under former O.C.G.A. § 17-12-4).
Noncompliance held denial of counsel.
- Failure to comply with former O.C.G.A. § 17-12-4 and implementing rules effectively denied the defendant counsel since no inquiry was made of the defendant regarding the defendant's efforts to retain an attorney and the defendant's inability to pay the required retainer. Butler v. State, 198 Ga. App. 217, 401 S.E.2d 43 (1990), cert. denied, 198 Ga. App. 897, 401 S.E.2d 43 (1991) (decided under former O.C.G.A. § 17-12-4).
Mandamus is proper remedy for failure of public defender's office to appoint appellate counsel.
- Trial court properly held that the trial court did not have authority to appoint appellate counsel for a defendant because, under the Georgia Indigent Defense Act of 2003, a defendant was required to direct a request for indigent representation directly to the public defender's office. It appeared that the defendant, who had been sentenced to prison, would be eligible under O.C.G.A. § 17-12-23; although the defendant claimed that the public defender's office would not heed the defendant's requests, the defendant was not without a remedy as the defendant could apply for a writ of mandamus under O.C.G.A. § 9-6-20. Bynum v. State, 289 Ga. App. 636, 658 S.E.2d 196 (2008).
Right to appointed counsel on direct appeal.
- Convicted defendant had the right to appointed counsel on direct appeal; therefore, a trial court was required to determine that the defendant knowingly and voluntarily waived the defendant's right to counsel prior to allowing the defendant's appointed counsel to withdraw. A remand was required for consideration of whether the waiver was knowing and voluntary. Calmes v. State, 312 Ga. App. 769, 719 S.E.2d 516 (2011), cert. denied, No. S12C0538, 2012 Ga. LEXIS 324 (Ga. 2012).
Cited in Potter v. State, 283 Ga. 576, 662 S.E.2d 128 (2008).
RESEARCH REFERENCES
Am. Jur. 2d.
- 21A Am. Jur. 2d, Criminal Law, § 1085 et seq.
ALR.
- Right to aid of counsel in application or hearing for habeas corpus, 162 A.L.R. 922.