State v. Atkinson

172 S.E.2d 249 (1970)

7 N.C. App. 355

STATE of North Carolina v. Dewey ATKINSON.

No. 707SC77.

Court of Appeals of North Carolina.

February 25, 1970.

*251 Atty. Gen. Robert Morgan, by Staff Attorney Edward L. Eatman, Jr., Raleigh, for the State.

Fields, Cooper & Henderson, by Leon Henderson, Jr., Rocky Mount, for defendant appellant.

*252 CAMPBELL, Judge.

We are not passing upon the merits of this case as to whether the defendant violated the conditions of his probation sentence. The determination of that will be at a subsequent hearing. We are confronted with whether the defendant's constitutional rights have been denied in the trial below.

A defendant charged with the violation of conditions of a probation sentence is entitled to representation by an attorney. Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967); McConnell v. Rhay, 393 U.S. 2, 89 S. Ct. 32, 21 L. Ed. 2d 2 (1968).

Where a defendant is entitled to counsel, this requirement is not complied with as a mere formality and

"* * * It does not contemplate that counsel shall `be compelled to act without being allowed reasonable time within which to understand the case and prepare the defense.'" State v. Farrell, 223 N.C. 321, 26 S.E.2d 322 (1943).

North Carolina General Statutes 15-200.1 provides for notice on the part of the probation officer to the accused that he proposes to pray for revocation of probation. This statute further provides:

"* * * The court, at the request of the defendant, shall grant a reasonable time for the defendant to prepare his defense. * * *"

The North Carolina Supreme Court in State v. Farrell, supra, stated:

"Ordinarily, whether a cause shall be continued is a matter which rests in the sound discretion of the trial court and, in the absence of gross abuse, is not subject to review on appeal. * * * This rule is so firmly established in this and other jurisdictions as to become axiomatic. It is not debated here. But when the motion is based on a right guaranteed by the Federal and State Constitutions, 14th Amend., U.S. Const., Art. I, sections 11 and 17, N. C. Const., the question presented is one of law and not of discretion, and the decision of the court below is reviewable."

The record in this case discloses that the defendant was an indigent in May and had court-assigned counsel representing him at his trial. At the hearing one month later while confined in jail many miles distant from the court where he was to be tried, he nevertheless diligently endeavored to retain counsel. He was unsuccessful in doing so until about one hour before the hearing. It is obvious that the attorney retained by the defendant did not have "a fair opportunity to acquaint himself with the law and the facts of the case." State v. Farrell, supra.

New hearing.

PARKER and HEDRICK, JJ., concur.