Opinion
A10A2357
DECIDED: MARCH 16, 2011
Following a jury trial, William S. Jones, pro se, appeals from his conviction of reckless conduct, reckless driving, and speeding. Jones contends that the trial court erred by (1) concluding that it had no jurisdiction over the motion for new trial he filed after his notice of appeal, and (2) denying him appointed counsel to represent him on appeal. For the reasons that follow, we affirm.
On May 18, 2009, a jury returned a guilty verdict against Jones on a 3-count accusation alleging that Jones drove more than 100 miles per hour on Interstate 285 with his 14-year-old child in the car. Before a judgment of conviction and sentence was entered, Jones, through counsel, filed extraordinary motions for new trial on May 29 and June 4, 2009, which were denied. On August 24, 2009, the trial court entered a judgment of conviction and sentence, and on the same day, Jones filed a pro-se notice of appeal from that order. On September 23, 2009, Jones then filed a pro-se motion for new trial. Finally, in an October 5, 2009 order, the trial court denied the motion for new trial, concluding that it had no jurisdiction to consider the motion.
1. Jones contends that the trial court erred by concluding that it lacked jurisdiction to address his motion for new trial, and this Court should therefore remand the case for resolution of the motion. Jones relies on Housing Authority of the City of Atlanta v. Geter, which held that a notice of appeal filed by the winning party did not deprive the losing party of its right to have the trial court rule on the losing party's timely filed motion for new trial. Based on the facts of the present case, however, we conclude that Geter does not require this Court to remand. In Atkinson v. State, we explained that the rule announced in Geter did not deprive this Court of jurisdiction over the appeal when, as here, the same party filed both the notice of appeal and the motion for new trial, but the party failed to follow the procedural prescription announced in Geter by diligently pursuing its trial court motion for new trial and moving for a stay in the appellate court. We find no reason to depart from this precedent, and we conclude that the trial court did not err in applying the traditional rule that a "notice of appeal divests the trial court of jurisdiction to alter a judgment while appeal of that judgment is pending."
252 Ga. 196 ( 312 SE2d 309) (1984).
See id. at 197
170 Ga. App. 260 ( 316 SE2d 592) (1984).
Id. at 261 (1).
(Punctuation omitted.) Teal v. State, 282 Ga. 319, 329 (7) ( 647 SE2d 15) (2007).
2. Jones also contends that the trial court erroneously denied him appointed counsel to represent him on appeal. At his initial sentencing hearing, on May 29, 2009, Jones expressed to the trial court his desire to have a different attorney appointed to represent him. The trial court delayed sentencing and offered Jones the opportunity to confer with the circuit defender's office about a new attorney. Jones elected to allow his trial counsel to remain on the case at least long enough to file extraordinary motions for new trial based on newly discovered evidence, which motions were filed and later denied. At the next hearing date, on July 1, 2009, Jones again requested new counsel, and the trial court allowed trial counsel to withdraw and continued the hearing. At the next hearing, on August 17, 2009, Jones had not obtained replacement counsel from the circuit defender's office, nor had he retained private counsel. The trial court denied the motions for new trial and sentenced Jones. Jones filed a pro-se notice of appeal, and he now contends that the trial court erred by not appointing him new counsel for his appeal.
The denial of these motions is not challenged on appeal.
The Supreme Court of Georgia has held that "an indigent has the right to appointed counsel to assist him on direct appeal." Nevertheless, "an indigent defendant has no right to compel the trial court to appoint a particular attorney of his own choosing. The choice of appointed counsel is a matter governed by the trial court's sound exercise of discretion and will not be disturbed on appeal unless that discretion is abused."
Roberts v. Caldwell, 230 Ga. 223, 224 ( 196 SE2d 444) (1973).
(Punctuation omitted; emphasis in original.) Waddell v. State, 292 Ga. App. 801, 802 ( 665 SE2d 893) (2008).
We note at the outset that Jones did not identify any particular counsel he desired, and the trial court did not refuse Jones the opportunity to obtain a different appointed counsel with cooperation of the circuit defender, nor did the trial court refuse Jones's choice of retained counsel. Furthermore,
[t]he Sixth Amendment guarantees effective assistance of counsel, not preferred counsel or counsel with whom a meaningful relationship can be established. An indigent defendant is not entitled to have his appointed counsel discharged unless he can demonstrate justifiable dissatisfaction with counsel, such as conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between counsel and client. Where a defendant does not have a good reason for discharging his court-appointed attorney, the trial court does not err in requiring him to choose between representation by that attorney and proceeding pro se.
(Punctuation and citations omitted.) Holsey v. State, 291 Ga. App. 216, 218-219 (2) ( 661 SE2d 621) (2008).
The record does not reveal a conflict or other good reason for the discharge of Jones's original court-appointed attorney. The evidence against Jones was overwhelming, including Jones's own testimony that the officer observing the offenses "nailed me," and Jones has not identified any deficiency in his trial counsel's performance or demonstrated any prejudice suffered as a result of trial counsel's representation. Under these circumstances, we discern no abuse of the trial court's discretion in this case. Judgment affirmed. Ellington, C. J., and Andrews, J., concur.
See id.