Williams v. Hopper , 243 Ga. 475 ( 1979 )

243 Ga. 475 (1979) 254 S.E.2d 854

WILLIAMS
v.
HOPPER.

34686.

Supreme Court of Georgia.

Submitted March 13, 1979. Decided April 5, 1979.

Willie H. Williams, pro se.

Arthur K. Bolton, Attorney General, William B. Hill, Jr., Staff Assistant Attorney General, for appellee.

JORDAN, Justice.

Willie H. Williams appeals the denial of his petition for writ of habeas corpus. Petitioner is presently serving a twenty-year sentence for the offense of armed robbery imposed by the Superior Court of DeKalb County on February 8, 1977, following a jury verdict of guilty.

The principal complaint presented in Williams' petition is that he was denied effective assistance of counsel. After a hearing which included the introduction of a deposition from petitioner's retained trial counsel the habeas court denied Williams' petition for habeas relief. We reverse.

During his habeas hearing Williams testified that he had requested his attorney to appeal his conviction, that his attorney had agreed to appeal the case, but that no appeal was ever filed. Williams' retained counsel admitted that Williams had requested an appeal, but explained that no appeal was filed because he was not paid. However, it was not until September 22, 1977, that counsel notified Williams that he was withdrawing from the case.

Also entered in the habeas record is a letter from Williams' attorney to his client dated May 26, 1977, some three months after Williams' conviction. In this letter, petitioner's counsel claims a motion for new trial has been filed and that he is fulfilling his obligation to Williams. This claim is discredited by counsel's own deposition testimony in which he admits no motion for new trial was ever filed and that petitioner had no appeal.

These facts demand a finding that petitioner was denied his constitutionally protected right of counsel when his retained trial counsel abandoned his requested appeal without notice. The judgment of the habeas court is reversed and petitioner is granted an out-of-time appeal.

Judgment reversed and an out-of-time appeal granted. All the Justices concur.