Reece v. Pettijohn

193 S.E.2d 841, 229 Ga. 619, 1972 Ga. LEXIS 705

Opinions

Grice, Presiding Justice.

This appeal is from the grant of the appellee’s motion to dismiss the appellant’s petition for habeas corpus on the ground that it failed to state a claim upon which relief could be granted. The appellant contends that the habeas corpus court erred in ruling that he was not entitled to the assistance of counsel at his probation revocation hearing.

In our view the habeas corpus court was correct in this ruling. This court in Dutton v. Willis, 223 Ga. 209 (154 SE2d 221), a full bench decision, held that "The failure to furnish counsel to one convicted of a criminal offense at the hearing to revoke his probation does not violate his right to counsel under the Federal or the State Constitution.”

The decision of the Supreme Court of the United States in Mempa v. Rhay, 389 U. S. 128 (88 SC 254, 19 LE2d 336) does not require a different result. There the court was dealing with the right to counsel in a situation where the state law provides for sentencing at the hearing on revocation of probation. Here the appellant was sentenced prior to being placed on probation, at which time he was represented by counsel.

See also in this connection, Shaw v. Henderson, 430 F2d 1116 (5 CCA), which treats this subject fully and reaches the same conclusion that we do.

We find no error in the ruling made here.

Judgment affirmed.

All the Justices concur, except Hawes and Gunter, JJ., who dissent.