Edge v. Smith

Undercofler, Justice.

Joseph E. Edge filed an application for the writ of habeas corpus against the Warden of the Georgia State Prison. His application shows that he was convicted of the offense of assault with intent to murder in November 1968 and was sentenced to 8 years in the penitentiary. He contends that he orally informed the court at every opportunity that he desired to appeal his conviction. His employed counsel filed a motion for new trial. On April 11, 1969, his employed counsel asked the court to relieve him of further service. On April 21, 1969, counsel was relieved from any further duties in the case. The trial court dismissed his motion for new trial for want of prosecution on April 23, 1969. It nowhere appears in the record that after his employed counsel was discharged from the case, he requested the trial court to appoint counsel for his appeal because he was unable to employ counsel.

Submitted December 14, 1970 Decided February 15, 1971. Joseph E. Edge, pro se. Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion 0. Gordon, Courtney Wilder Stanton, Assistant Attorneys General, for appellee.

On the hearing of the habeas corpus application the trial court found from the evidence presented that: "Petitioner contends that because his motion for new trial was denied he should be released at this time. He also contends that the clerk of the court did not furnish him with certain records for use in this hearing. The record shows that the court permitted Mr. Butler, the attorney representing petitioner, permission to withdraw from the case after petitioner apparently became dissatisfied with his services. The petitioner apparently then appealed his own case, which appeal was denied. This court has carefully considered all of the contentions of the petitioner and cannot find where he alleges that any of his constitutional rights were violated, admitting everything that he claims happened is true.”

The findings of fact of the trial judge were authorized by the record in this case and there is nothing shown in the record which indicates that the appellant informed the court that he was unable to employ counsel and desired counsel appointed for him.

This case is distinguishable from the case of Chenoweth v. Smith, 225 Ga. 572, 574 (170 SE2d 235). In the Chenoweth case counsel was appointed to represent the appellant on appeal but failed to so represent him.

Judgment affirmed.

All the Justices concur.