2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 12 - Legal Defense for Indigents
Article 1 - Georgia Public Defender Council
§ 17-12-12. Georgia Capital Defender Division; Duties, Responsibilities, and Management

1. The Georgia capital defender division shall represent all indigent persons charged with a capital felony for which the death penalty is being sought in any court in this state and shall be the successor to the Office of the Georgia Capital Defender created by Article 6 of this chapter as it existed on June 30, 2008. Any assets or resources of the Office of the Georgia Capital Defender shall be transferred to the council. The Georgia capital defender division shall serve all counties of this state.
2. Whenever any person accused of a capital felony for which the death penalty is being sought has been determined to be an indigent person who has requested the assistance of counsel, the court in which the charges are pending shall notify the Georgia capital defender division, and the division shall assume the defense of such person except as provided in Code Section 17-12-12.1.
3. No person shall be assigned the primary responsibility of representing an indigent person accused of a capital offense for which the death penalty is sought unless such person is authorized to practice law in this state and is otherwise competent to counsel and defend a person charged with a capital felony.
4. The Georgia capital defender division or appointed counsel's defense of a defendant in a case in which the death penalty is sought shall include all proceedings in the trial court and any appeals to the Supreme Court of Georgia. Neither the Georgia capital defender division nor appointed counsel shall assist with any petition for a writ of habeas corpus in federal court.
5. The director shall be responsible for management of the Georgia capital defender division; provided, however, that the director may delegate day-to-day operations of the division to the capital defender.

(Code 1981, §17-12-12, enacted by Ga. L. 2003, p. 191, § 1; Ga. L. 2008, p. 846, § 26/HB 1245.)

- For article, "The Indigent Defendant in Georgia," see 26 Ga. B.J. 395 (1964). For article supporting the adoption of comprehensive right to counsel legislation, see 3 Ga. St. B.J. 157 (1966). For note suggesting attorney's due process right to be compensated for representing an indigent, see 16 Mercer L. Rev. 367 (1964).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1953, Nov.-Dec. Sess., p. 478, §§ 1, 2; Ga. L. 1968, p. 999, § 4, and former §§ 17-12-60 and17-12-61, are included in the annotations for this Code Section.

Purpose of Ga. L. 1953, Nov.-Dec. Sess., p. 478, § 1 insofar as that law related to appeals in forma pauperis was to ensure that no person convicted of a capital felony shall be denied the right of appeal because of that person's poverty. McCrary v. State, 229 Ga. 733, 194 S.E.2d 480 (1972).

- Lack of counsel after the death sentence is imposed deprives the accused of the accused's vital constitutional right to counsel and renders the accused's trial and sentence void. Sims v. Balkcom, 220 Ga. 7, 136 S.E.2d 766 (1964) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 478, § 2).

Ga. L. 1953, Nov.-Dec. Sess., p. 478, § 1 et seq. was not unconstitutional as violating Ga. Const. 1945, Art. III, Sec. VII, Para. VIII; Art. VI, Sec. IX, Para. I; Art. VII, Sec. IV, Para. I (see Ga. Const. 1983, Art. III, Sec. V, Para. III; Art. VI, Sec. I, Para. V; Art. IX, Sec. IV, Para. I). Bibb County v. Hancock, 211 Ga. 429, 86 S.E.2d 511 (1955).

Section superseded by O.C.G.A. § 17-12-44. - With the enactment of O.C.G.A. § 17-12-44, it would seem that former O.C.G.A. § 17-12-60 had been, in effect, superseded. Straughan & Straughan v. Douglas, 260 Ga. 821, 400 S.E.2d 906 (1991) (decided under former § 17-12-60).

- State may not constitutionally hale the person into the state's criminal courts and there force a lawyer upon the person, when the person insists that the person wants to conduct the person's own defense. Taylor v. Hopper, 596 F.2d 1284 (5th Cir. 1979), cert. denied, 444 U.S. 1083, 100 S. Ct. 1039, 62 L. Ed. 2d 768 (1980) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 478, § 1).

- Trial judge does not have a duty to attempt to force unwanted counsel upon a defendant who has resolutely declared the defendant's purpose to dismiss that counsel. Taylor v. Hopper, 596 F.2d 1284 (5th Cir. 1979), cert. denied, 444 U.S. 1083, 100 S. Ct. 1039, 62 L. Ed. 2d 768 (1980) (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 478, § 1).

- Trial court acted within the court's discretion in replacing the defendant's appointed private attorneys with salaried counsel from the capital defender's division of the Georgia Public Defender Standards Council (GPDSC) because retaining the defendant's current counsel would perpetuate the funding problems that had plagued the case; evidence was presented that the GPDSC, and possibly the county, currently had funds available for travel and other investigative expenses. Phan v. State, 290 Ga. 588, 723 S.E.2d 876 (2012).

Compensation under § 17-12-5. - Although an attorney applies for appointment under former O.C.G.A. §§ 17-12-60 and17-12-61, this does not preclude an attorney from seeking compensation under O.C.G.A. § 17-12-5(b). In re Whatley, 256 Ga. 289, 347 S.E.2d 602 (1986) (decided under former §§ 17-12-60 and17-12-61).

§ 17-12-5(b). - Although an attorney applies for appointment under former O.C.G.A. § 17-12-12, this did not preclude the attorney from seeking compensation under § 17-12-5(b). In re Whatley, 256 Ga. 289, 347 S.E.2d 602 (1986).

- Indigent defendant was constitutionally entitled to the appointment of counsel at the defendant's upcoming murder trial even if the defendant was currently being provided pro bono representation by an attorney who was receiving compensation from sources other than the defendant. Roberts v. State, 263 Ga. 764, 438 S.E.2d 905 (1994) (decided under former § 17-12-60).

Cited in Fulton County v. State, 282 Ga. 570, 651 S.E.2d 679 (2007).

No requirement existed that counsel be appointed for indigent habeas corpus petitioner. 1971 Op. Att'y Gen. No. U71-147 (decided under former law).

- Under Ga. Const. 1945, Art. I, Sec. I, Para. V (see Ga. Const. 1983, Art. I, Sec. I, Para. XIV), when a person is charged with a crime in this state, and the court is satisfied that the defendant by reason of the defendant's poverty is indigent and unable to the pay attorney's fee, it is then the duty of the judge to appoint a member of the bar to investigate such a defendant without compensation. However, under Ga. L. 1953, Nov.-Dec. Sess., p. 478, § 1, counsel may be paid for counsel's service when the defendant has been charged with a capital felony and is unable to pay counsel. 1958-59 Op. Att'y Gen. p. 80 (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 478, § 1).

Amended motion for new trial would fall under Ga. L. 1953, Nov.-Dec. Sess., p. 478, § 1. 1960-61 Op. Att'y Gen. p. 119 (decided under Ga. L. 1953, Nov.-Dec. Sess., p. 478, § 1).

RESEARCH REFERENCES

Am. Jur. 2d.

- 7 Am. Jur. 2d, Attorneys at Law, §§ 237 et seq., 249 et seq., 294 et seq.

- 7A C.J.S., Attorney and Client, §§ 344 et seq., 363 et seq.

- Right of defendant in criminal case to conduct defense in person, or to participate with counsel, 17 A.L.R. 266; 77 A.L.R.2d 1233.

Incompetency, negligence, illness or the like of counsel as ground for new trial or reversal in criminal case, 24 A.L.R. 1025; 64 A.L.R. 436.

Brevity of time between assignment of counsel and trial as affecting question whether accused is denied right to assistance of counsel, 84 A.L.R. 544.

Right of indigent defendant in criminal case to aid of state as regards new trial or appeal, 100 A.L.R. 321; 55 A.L.R.2d 1072.

Duty of court when appointing counsel for defendant to name attorney other than one employed by, or appointed for, a codefendant, 148 A.L.R. 183.

What constitutes "trial," "final trial," or "final hearing" under statute authorizing allowance of attorneys' fees as costs on such proceeding, 100 A.L.R.2d 397.

Attorney's refusal to accept appointment to defend indigent, or to proceed in such defense, as contempt, 36 A.L.R.3d 1221.

Determination of indigency of accused entitling him to appointment of counsel, 51 A.L.R.3d 1108.

Accused's right to represent himself in state criminal proceeding - modern state cases, 98 A.L.R.3d 13.