A reasonable time shall be given to the defendant and prosecutor for the preparation of the case. In no event shall the defendant be forced to attend the hearing without the aid of counsel if there is a reasonable probability of his securing counsel without too great delay. Where the hearing is postponed to a future day at the instance of either party or the court, it shall not be necessary to commit the defendant to jail pending the hearing; but he shall have the right to give bail for appearance at the hearing before the court of inquiry if the offense is bailable under the authority of the court.
(Orig. Code 1863, § 4613; Ga. L. 1865-66, p. 236, § 1; Code 1868, § 4635; Code 1873, § 4732; Code 1882, § 4732; Penal Code 1895, § 908; Penal Code 1910, § 933; Code 1933, § 27-403.)
Cross references.- Constitutional guarantee of benefit of counsel, Ga. Const. 1983, Art. I, Sec. I, Para. XIV.
Law reviews.- For article, "The Indigent Defendant in Georgia Prior to Gideon v. Wainwright," see 2 Ga. St. B.J. 207 (1965). For note, "Bail in Georgia: Elimination of 'Double Bonding' - A Partially Solved Problem," see 8 Ga. St. B.J. 220 (1971).
JUDICIAL DECISIONS
Right to employ retained counsel.
- Due process requirements guarantee to a defendant unable to employ counsel the right to have counsel appointed by the court, but no less do the requirements entitle an accused who is able to employ counsel a reasonable opportunity to obtain representation of the accused's choice, and the accused is not compelled to accept court appointed defenders instead of an attorney in whom the accused reposes greater confidence merely to speed the accused's trial by a day or two. Foote v. State, 136 Ga. App. 301, 220 S.E.2d 786 (1975).
Denial of right to counsel of own choice.
- Improper denial of the defendant's right to be represented by counsel of the defendant's own choosing is violative of Ga. Const. 1976, Art. I, Sec. I, Para. XI (see Ga. Const. 1983, Art. I, Sec. I, Para. XIV) and this section, and abrogates the right of procedural due process. Johnson v. State, 139 Ga. App. 829, 229 S.E.2d 772 (1976).
Inquiry into defendant's representation by counsel.
- While a defendant may not be actually denied the privilege of counsel at the defendant's commitment hearing if it is made to appear that the defendant is able to procure one in a reasonable time, no affirmative duty rests on the judicial officer presiding at a commitment hearing to inquire into the defendant's representation by counsel, as upon a judge presiding over the actual trial of the defendant. The failure of the judicial officer to inform the defendant that the defendant has a right to secure counsel does not disclose that the defendant has been denied counsel as guaranteed by the Constitution. Harris v. Norris, 188 Ga. 610, 4 S.E.2d 840 (1939).
Discretion of court as to motions for postponement.
- When it affirmatively appears that the possible time for investigation and preparation of the defense is short, and the defendant has not been dilatory in obtaining counsel, the discretion of the court on motions for postponement should be liberally exercised in favor of a fair trial. Foote v. State, 136 Ga. App. 301, 220 S.E.2d 786 (1975).
Judge's refusal of the request of a defendant for postponement, which in effect deprives the defendant of an opportunity to use normal facilities and resources to procure counsel of the defendant's own choice violated this section. Walker v. State, 194 Ga. 727, 22 S.E.2d 462 (1942).
Preliminary hearing without counsel as grounds for reversal.
- When a preliminary hearing is held in the absence of the defendant's counsel, the reviewing court must reverse if the court determines that the lack of counsel might have contributed to the conviction. Mitchell v. State, 173 Ga. App. 560, 327 S.E.2d 537 (1985).
Cited in Whitman v. Bullock, 45 Ga. 173 (1872); Newsome v. Scott, 151 Ga. 639, 107 S.E. 854 (1921); Harris v. Norris, 188 Ga. 610, 4 S.E.2d 840 (1939); Blake v. State, 109 Ga. App. 636, 137 S.E.2d 49 (1964); Whitfield v. State, 115 Ga. App. 231, 154 S.E.2d 294 (1967); Jackson v. State, 225 Ga. 39, 165 S.E.2d 711 (1969); Lambert v. McFarland, 612 F. Supp. 1252 (N.D. Ga. 1984).
RESEARCH REFERENCES
Am. Jur. 2d.
- 8A Am. Jur. 2d, Bail and Recognizance, § 1 et seq. 21 Am. Jur. 2d, Criminal Law, § 562. 39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies, § 34 et seq.
C.J.S.- 6 C.J.S., Appearances, § 28. 8 C.J.S., Bail; Release and Detention Pending Proceedings, § 47 et seq. 16D C.J.S., Criminal Procedure and Rights of the Accused, § 2388 et seq.
ALR.
- Brevity of time between assignment of counsel and trial as affecting question whether accused is denied right to assistance of counsel, 84 A.L.R. 544.
Duty to advise accused as to right to assistance of counsel, 3 A.L.R.2d 1003.
Right to counsel in insanity or incompetency adjudication proceedings, 87 A.L.R.2d 950.
Accused's right to assistance of counsel at or prior to arraignment, 5 A.L.R.3d 1269.
Scope and extent and remedy or sanctions for infringement, of accused's right to communicate with his attorney, 5 A.L.R.3d 1360.
Accused's right to represent himself in state criminal proceedings - modern state cases, 98 A.L.R.3d 13.
Denial of, or interference with, accused's right to have attorney initially contact accused, 18 A.L.R.4th 669.
Denial of accused's request for initial contact with attorney - drunk driving cases, 18 A.L.R.4th 705.
Denial of accused's request for initial contact with attorney - cases involving offenses other than drunk driving, 18 A.L.R.4th 743.
Waiver of right to counsel by insistence upon speedy trial in state criminal case, 19 A.L.R.4th 1299.