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Court Reverses Molestation Conviction Due to Improper Withdrawal of Counsel

April 23, 2019

The Georgia Court of Appeals held that the trial court erroneously permitted the defendant's attorney to withdraw from his case just a week prior to his trial on charges of aggravated sexual battery and child molestation.

The Court found that the defendant’s newly appointed counsel was simply unprepared to effectively represent him given that the case proceeded to trial the following week. The Court reversed the defendant’s convictions and granted him a new trial.

In Black v. State, the defendant was indicted for the offenses of aggravated sexual battery and child molestation. Just two months after the case was indicted, he appeared at a Monday morning trial calendar. At the call of the calendar, the defendant learned for the first time that his attorney filed a motion to withdraw from the case the previous Thursday. The defendant was not provided with the notice required by Uniform Superior Court Rule 4.3, nor was he given 10 days to object to the attorney’s request to withdraw.

Without even addressing the merits of the lawyer’s motion to withdraw, the judge told him he needed to get a new lawyer right away and that his trial would begin the following Monday. The judge then gave the defendant a stern warning about showing up to court without a lawyer.

The defendant obtained an appointed attorney later that day and the judge informed the new attorney that no continuance of the trial would be granted. On the following Monday, the newly appointed attorney announced that he was ready for trial despite the fact that he just tried two felony cases since last week’s calendar call. Nevertheless, he stated that he was ready to defend his client against these very serious sex offense allegations. On the following day, the defendant was convicted and sentenced to 25 years to serve in prison.

The Court of Appeals held that it was an abuse of discretion for the trial court to permit the defendant’s attorney to withdraw from the case without any consideration of the merits of his motion or the fact that the motion failed to comply with the Uniform Superior Court Rules. Interestingly, in the defense attorney’s motion to withdraw, it stated that “the state has no objection to withdrawal and a continuance from this trial calendar to allow defendant to obtain new counsel.”

The Court recognized that the defendant had a constitutional right to the attorney of his choice and he could have exercised this right by objecting to the attorney’s attempt to withdraw. However, he was given no notice or opportunity to object. It was also pointed out that an actual withdrawal of counsel cannot be accomplished until the trial judge signs an order withdrawing the attorney from the case. The record in this case showed that even at the time of the motion for new trial hearing, an order granting the withdrawal still had not been signed.

The Court also held that the trial court abused its discretion in failing to consider the need for a continuance of the trial to give the newly appointed attorney time to prepare. This was a child molestation case where the defendant was facing a mandatory minimum 25-year prison sentence. The Court cited to prior decisions that have held that the withdrawal of a defendant’s attorney immediately before trial leaves the defendant unprepared for trial and is grounds for a continuance. Merely appointing new counsel for the defendant does not cure the problem when the attorney is not given a reasonable amount of time to prepare his defense properly.

As a result, the defendant’s convictions for aggravated sexual battery and child molestation were reversed and the case was remanded for a new trial.

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