Continuance. Dodge Superior Court. Before Judge Mullis.
Hames Law Firm, Adam M. Hames, for appellant.
Timothy G. Vaughn, District Attorney, Christopher C. Gordon, Assistant District Attorney, for appellee.
David T. Lewis was convicted in a bench trial of false imprisonment, abuse of an elderly person, aggravated assault, and hindering a person from making an emergency call. He appeals his convictions, arguing that the trial court erred by denying his request for continuance. Lewis requested that continuance on the day of trial, after firing his fourth attorney. We find that the trial court did not err and therefore affirm Lewis's convictions.
Lewis was indicted for the crimes on February 21, 2012. Attorney David E. Morgan III filed an entry of appearance on May 19,
2012, and filed various motions. The record contains no document regarding Morgan's withdrawal, but on April 15, 2013, attorney J. Frank Smith, Jr., filed an entry of appearance and various motions. Lewis asked Smith to withdraw, and, on July 15, 2013, Smith filed a motion to do so. The trial court granted Smith's motion to withdraw. Shortly thereafter, attorney Sarah Riedel entered an appearance on Lewis's behalf and filed motions. But less than a month later, Lewis filed a pro se pleading consenting to Riedel's withdrawal from the case. Attorney Thomas F. Jarriel then began representing Lewis.
On Monday, October 7, 2013, the trial court held a calendar call at which Lewis waived his right to a jury trial; Jarriel, Lewis's attorney, announced that he was ready for trial; and the court set Lewis's trial for Friday, October 11. When the case was called that Friday, Lewis indicated that he wanted to discharge Jarriel and sought a continuance. The court allowed Jarriel to withdraw but denied the request for a continuance. The bench trial proceeded with Lewis representing himself, and the trial court found him guilty.
Lewis now appeals, arguing that the trial court abused his discretion in denying his motion for continuance.
" All applications for continuances are addressed to the sound legal discretion of the court. ..." OCGA § 17-8-22. " The defendant's conduct is obviously relevant and is a proper consideration for the [330 Ga.App. 651] judge in the exercise of his discretion. The reason for this is to prevent the defendant from using discharge and employment of counsel as a dilatory tactic." McConnell v. State, 263 Ga.App. 686, 687 (1) (589 S.E.2d 271) (2003) (citations and punctuation omitted). The sudden withdrawal of retained counsel is not " ipso facto a ground for continuance." Huckaby v. State, 127 Ga.App. 439, 440 (1) (194 S.E.2d 119) (1972) (citation omitted).
Lewis argues that the trial court abused his discretion denying the continuance because the denial required Lewis to go to trial without the assistance of counsel. He concedes, however, that he " deserves some of the blame for terminating his counsel after the calendar call" and even that he waived his right to counsel, albeit implicitly. Lewis had discharged at least three attorneys, including one on the day of trial, had announced ready for trial, and sought the continuance at the commencement of the trial. He insisted that he did not want Jarriel to represent him in spite of the trial court's warnings of the dangers of proceeding without counsel. Under these circumstances,
the trial court was authorized to conclude that [Lewis] was attempting to use the discharge ... of ... counsel as a dilatory tactic, which was the functional equivalent of a knowing and voluntary waiver of ... counsel. In such instances, the trial court may [deny a continuance and] proceed to trial with the defendant representing himself.
Hobson v. State, 266 Ga. 638 (2) (469 S.E.2d 188) (1996) (citation and punctuation omitted). See also Bryant v. State, 268 Ga. 616, 617-618 (2) (491 S.E.2d 320) (1997) (court did not err by denying defendant's motion for continuance after he sought to discharge counsel during jury selection and elected to proceed pro se); Cain v. State, 310 Ga.App. 442, 444 (1) (714 S.E.2d 65) (2011) (trial court did not err in denying continuance and requiring defendant to proceed pro se); Massalene v. State, 224 Ga.App. 321, 322 (1) (480 S.E.2d 616) (1997) (trial court did not err in denying motion for continuance when defendant discharged attorney on day of trial and elected to proceed pro se); Bacon v. State, 146 Ga.App. 468 (246 ...