concurring specially.
I do not agree with either the majority opinion in Reece v. Pettijohn, 229 Ga. 619 (193 SE2d 841) or the dissent therein. The majority opinion in that case held that no person is entitled to counsel at a hearing to revoke probation. The dissent stated that counsel must be afforded at a proceeding to revoke probation. Both premises were rejected by the Supreme Court of the United States in Gagnon v. Scarpelli, 411 U. S. 778 (93 SC 1756, 36 LE2d 656). In rejecting the latter the court said that to hold otherwise "would impose direct costs and serious collateral disadvantages without regard to the need or the likelihood in a particular case for a constructive contribution by counsel.” Id., p. 787. The court held: "It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be *621followed in determining when the providing of counsel is necessary to meet the applicable due process requirements. The facts and circumstances in prehminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision. Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself.” Id., pp. 790-791.
At the evidentiary hearing on his petition, Mercer testified that at his probation revocation hearing (which followed not one but two post-conviction arrests for drunkenness) a law officer testified that at the time of Mercer’s arrest he (the officer) requested a blood test at a hospital but was told the hospital lacked facilities to make the test; but he did smell liquor on Mercer’s breath. Mercer then testified that when the judge asked him (Mercer) what he had to say, he stood mute, saying nothing in his own defense, and not denying the truth of the charge against him nor requesting counsel. On the question whether Mercer was capable of speaking effectively for himself, his testimony showed him not fluent, but able to articulate his claims. I conclude that Mercer could have spoken up in his own defense, at the time revocation of his probation was under consideration, and he elected not to do so. Therefore, the judge had nothing to consider except the officer’s testimony. Under these facts, I conclude that Mercer did not by his conduct bring himself within the rule of Scarpelli, and due process did not require that counsel be furnished him.