Foskey v. Sapp

Per. curiam.

This court granted a certificate for review of a habeas corpus judgment that remanded the appellant to custody.

In March of 1975, the appellant entered a plea of guilty to motor vehicle theft and received a sentence, to be served on probation, of three years. In September of 1975, two indictments were returned against appellant charging him with possession of vehicles from which the *789manufacturers’ serial numbers had been removed for the purpose of concealing the identity of the vehicles.

On October 1, 1975, appellant’s parole supervisor filed an application with the court to revoke appellant’s probation because he had been indicted for two felonies on September 23,1975. The trial judge ordered the appellant to show cause on October 7, 1975, why his probation should not be revoked for the reasons stated in the application for revocation. The appellant was in custody on the charges contained in the September 23 indictments, and the probation supervisor served a copy of the show-cause order on the appellant at the jail on October 3, 1975.

Appellant signed an acknowledgment of service of the show-cause order, and this acknowledgment also contained the following: "I am aware that I am entitled to legal representation at said hearing.”

The trial judge conducted the revocation hearing on October 7, and thereafter entered an order revoking appellant’s probation. Appellant was not represented by counsel at the revocation hearing.

Appellánt thereafter filed an application for a writ of habeas corpus in which he contended that he was not represented by counsel at the revocation hearing, that he was indigent and entitled to have counsel appointed for him, and that though he knew he was entitled to employ counsel, he was not advised that he had the right as an indigent to appointed counsel. The probation supervisor testified at the habeas hearing that appellant knew that he had the right to employ counsel, that appellant was not advised that if he could not afford to employ counsel he was entitled to appointed counsel at the revocation hearing, and that he, the supervisor, thought that appellant or appellant’s father would employ counsel to represent appellant at the revocation hearing.

The habeas judge rendered a finding that the appellant had "indicated to the Probation Supervisor that he would employ private counsel for the Probation Revocation Hearing,” and he entered a judgment remanding the appellant to custody.

The rule in this state is that an indigent is not entitled to appointed counsel at his probation revocation *790hearing. Dutton v. Willis, 223 Ga. 209 (154 SE2d 221) (1967), Reece v. Pettijohn, 229 Ga. 619 (193 SE2d 841) (1972), and Mercer v. Hopper, 233 Ga. 620 (212 SE2d 799) (1975).

Submitted June 7, 1976 Decided October 22, 1976. E. Kontz Bennett, Jr., for appellant. Dewey Hayes, District Attorney, Arthur K. Bolton, Attorney General, Isaac Byrd, Staff Assistant Attorney General, for appellee.

Judgment affirmed.

All the Justices concur, except Jordan and Hill, JJ., who concur specially, Hall, J., who concurs in the judgment, and Gunter and Ingram, JJ., who dissent.