Clark v. State

159 Ga. App. 438 (1981)

283 S.E.2d 666

CLARK v. THE STATE.

62241.

Court of Appeals of Georgia.

Decided September 8, 1981.

George O. Lawson, Jr., for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Jerry Baxter, Assistant District Attorneys, for appellee.

BANKE, Judge.

The appellant appeals his conviction of aggravated assault. On the afternoon of his trial, he sought a continuance on the ground that his family had recently become able to retain a private attorney for him. He was at the time represented by appointed counsel, who apparently had spoken that morning to the private attorney in question. The latter was apparently willing to undertake the case but was unprepared to do so immediately. Appointed counsel requested that the case be "put over at least one time." Held:

1. A motion for continuance is addressed to the sound discretion of the trial court. Absent a showing that it has been abused, that discretion will not be controlled. Crow v. State, 86 Ga. App. 11 (1) (70 SE2d 601) (1952). The record in this case shows that appellant was indicted on October 31, 1980, and was free on bond until his trial on January 5, 1981. There is no indication that the appellant saw or spoke with the attorney he wished to retain at any time. "It is the defendant's duty to employ counsel to aid in the preparation of his defense in advance of the trial of the case." McLendon v. State, 123 Ga. App. 290, 295 (180 SE2d 567) (1971). The appointed counsel was prepared and ready for trial when the case was called, and there is no indication that his representation was less than adequate. We find no error in the denial of the continuance.

2. The appellant contends that reversal is required because alibi was not charged. This enumeration is completely without merit. The appellant presented no evidence of alibi, and in fact verified a police officer's testimony that he was arrested in the vicinity of the scene shortly after the crime was committed. See generally Dixon v. State, 157 Ga. App. 550 (1) (278 SE2d 130) (1981).

Judgment affirmed. Deen, P. J., and Carley, J., concur.