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2018 Georgia Code 17-12-12 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 17-12-12 Case Law from Google Scholar Amendments to OCGA 17-12-12

TITLE 17 CRIMINAL PROCEDURE

Section 12. Legal Defense For Indigents, 17-12-1 through 17-12-128.

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.)

Law reviews.

- 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 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 the same 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 sentenced to death violates right to counsel.

- 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 force counsel on defendant.

- 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).

Judge has no duty to force counsel on defendant.

- 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).

Appointment of counsel.

- 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).

Compensation under

§ 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).

Constitutional right to counsel.

- 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).

OPINIONS OF THE ATTORNEY GENERAL

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

Construction with constitutional duty to render certain services without compensation.

- 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, §§ 260 et seq., 306 et seq. 21 Am. Jur. 2d, Criminal Law, § 373 et seq.

C.J.S.

- 7A C.J.S., Attorney and Client, § 299 et seq. 24 C.J.S., Criminal Law, § 1738 et seq.

ALR.

- 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.

Cases Citing O.C.G.A. § 17-12-12

Total Results: 9  |  Sort by: Relevance  |  Newest First

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White v. State, 302 Ga. 315 (Ga. 2017).

Cited 90 times | Published | Supreme Court of Georgia | Oct 16, 2017 | 806 S.E.2d 489

...ro se motion, the defendant is no longer represented by counsel.3 This far-fetched argument, even if correct, would not apply to Appellant, because here there was no trial; Appellant entered guilty pleas before his trial ever started. Moreover, OCGA § 17-12-12 (d) says: “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....
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Phan v. State, 290 Ga. 588 (Ga. 2012).

Cited 36 times | Published | Supreme Court of Georgia | Feb 27, 2012 | 723 S.E.2d 876, 2012 Fulton County D. Rep. 587

...n of effective and uniform indigent defense on a statewide basis. See Ga. L. 2003, p. 191, § 1; OCGA §§ 17-12-1 to 17-12-13. The capital defender’s division is responsible for providing indigent defense in death penalty cases in the State. OCGA § 17-12-12 (a). The Office of the Georgia Capital Defender was the predecessor to the capital defender division of the GPDSC. See OCGA § 17-12-12 (a). See also OCGA §§ 17-12-120 to 17-12-128 (repealed effective July 1, 2008, see Ga....
...he county to assist in funding the defense. See Ga. Public Defender Standards Council v. State, 285 Ga. 169, 172-173 (675 SE2d 25) (2009) (Indigent Defense Act requires State, not county, to fund death penalty defense for indigents). See also OCGA §§ 17-12-12, 17-12-12.1. Indeed, testimony at the August 2008 hearing from the director of the capital defender division indicated that, absent the various budget directives, the GPDSC would likely have approved the travel request in its entirety. At the rema...
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Fulton Cnty. v. State, 651 S.E.2d 679 (Ga. 2007).

Cited 19 times | Published | Supreme Court of Georgia | Sep 24, 2007 | 282 Ga. 570, 2007 Fulton County D. Rep. 2930

...821, 822, 400 S.E.2d 906 (1991); Bibb County v. Hancock, 211 Ga. 429, 86 S.E.2d 511 (1955). However, this Code section was only effective until January 1, 2005, following establishment of the Georgia Public Defender Standards Council. See OCGA §§ 17-12-1; 17-12-12....
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Duke v. State, 856 S.E.2d 250 (Ga. 2021).

Cited 7 times | Published | Supreme Court of Georgia | Mar 15, 2021 | 311 Ga. 135

...defenders to contract with outside counsel and then provide ancillary service funding to indigent defendants represented by such attorneys. The IDA expressly requires the GPDC to contract with conflict attorneys in death penalty cases. See OCGA § 17-12-12.1....
...as “the fiscal officer for the 21 its own employees and the circuit public defenders and their employees, but also through contracts with outside counsel and ancillary service providers. See, e.g., OCGA §§ 17-12-12.1; 17-12-28; 17-12-29; 17-12-31 (a)....
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McCullough v. State, 818 S.E.2d 520 (Ga. 2018).

Cited 6 times | Published | Supreme Court of Georgia | Aug 20, 2018 | 304 Ga. 290

...On July 10, 2012, after Appellant was indicted and the State gave notice of its intent to seek the death penalty, Brad Gardner, an attorney with the capital defender division of the Georgia Public Defender Council, filed his appearance to represent Appellant. See OCGA § 17-12-12 (a) ("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....")....
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Georgia Pub. Def. Standards Council v. State, 675 S.E.2d 25 (Ga. 2009).

Cited 4 times | Published | Supreme Court of Georgia | Mar 9, 2009 | 285 Ga. 169, 2009 Fulton County D. Rep. 763

...ven prior to January 1, 2005. Palmer was again convicted and sentenced to death, and Attorneys submitted a final bill for $68,946.61. On August 24, 2007, the trial court ordered the Council to pay Attorneys' fees and expenses pursuant to former OCGA § 17-12-127(b), which read as follows: If for any reason the [O]ffice [of the Georgia Capital Defender] is unable to defend any indigent person accused of a capital felony for which the death penalty is being sought, the presiding judge of the super...
...e by the [Capital Defender].... Ga. L.2003, pp. 191, 217, § 1. This code section was part of Article 6 of Chapter 12 of Title 17. That Article created the Office of the Georgia Capital Defender and became "effective on January 1, 2005." Former OCGA § 17-12-128 (Ga.L.2003, pp. 191, 217, § 1). We note that Article 6 was repealed in 2008 when the Office was succeeded by the capital defender division of the Council, but comparable provisions are now found in OCGA §§ 17-12-12 and 17-12-12.1. Ga. L.2008, pp. 846, 865-867, 873, §§ 26, 27, 42. The trial court held that former OCGA § 17-12-127(b) did not expressly exclude reimbursement by the Council where, as here, the defendant was indicted prior to January 1, 2005 and his attorneys were appointed after that date....
...olitical considerations or private interests, to indigent persons who are entitled to representation under [the Act]." OCGA § 17-12-1(c). See also Alison Couch, Criminal Procedure, 20 Ga. St. U.L.Rev. 105 (2003). The Council argues that former OCGA § 17-12-124 contemplated only contemporaneous or future indictments and future death penalty notices because it required the Capital Defender to submit "a proposed budget for representation of all indigent persons accused of a capital felony for which the death penalty is or is likely to be sought." Ga....
...or limitation as to cases pending on the effective date of the act"). Compare Nickerson v. State, 287 Ga.App. 617, 618-619(1), 652 S.E.2d 208 (2007) (clause involving effective date expressly provided for pending cases); former OCGA §§ 17-12-108, 17-12-127.1 (Ga....
...191, 215, § 1; Ga. L.2004, pp. 631, 636, § 17(11)) (dealing only with continued representation by and payment to attorneys appointed pursuant to former Article 5, which temporarily created the office of the multicounty public defender). Furthermore, former OCGA § 17-12-127(b) explicitly tied payment with Council funds to appointment of defense counsel pursuant to that subsection. Thus, in this case, the fact that Attorneys were appointed after the effective date of former OCGA § 17-12-127(b) indicates that their payment is governed by that statute rather than preexisting law. Compare State v. Crittenden County, 320 Ark. 356, 896 S.W.2d 881, 884(I) (1995). Moreover, payment was expressly promised to come from the conflict funds which are the subject of former OCGA § 17-12-127(b)....
...e to the Office, and the Director was authorized to hire those staff employees and contract with outside consultants on behalf of the Council as may have been necessary to provide the services contemplated by the Act. Former OCGA §§ 17-12-5(b)(3), 17-12-123(4) (Ga.L.2003, pp. 191, 197, 216, § 1). Even if Mr. Mears was not authorized to hire Attorneys and promise payment, former OCGA § 17-12-127(b) placed ultimate responsibility on the trial court for the appointment of counsel due to a conflict of interest in a death penalty case....
...viction is overturned by a habeas court. Accordingly, both the statutory language of the Act and its underlying policy compel the conclusion that, in this case, the Council is responsible for payment of indigent defense costs pursuant to former OCGA § 17-12-127(b). The indigent defense budgetary considerations raised by the Council do not constitute a proper policy matter for this Court. Moreover, the Council has not shown how those considerations would weigh in favor of its interpretation of former OCGA § 17-12-127(b), because whoever must fund indigent defense in particular death penalty cases, whether it be the individual county or the State acting through the Council, will be required to consider the potential for retrials in budgeting for the appointment of counsel for indigent defendants. Because former Article 6 took effect prior to the appointment of Attorneys, application of former OCGA § 17-12-127(b) clearly does not violate the prohibition on the State's assumption of prior debts, as set forth in the Georgia Constitution of 1983, Art....
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Putnal v. State, 303 Ga. 569 (Ga. 2018).

Cited 1 times | Published | Supreme Court of Georgia | May 7, 2018

...ceedings consistent with this opinion. 1. Because Putnal is indigent, the capital defender division of the Georgia Public Defender Council (“Council”) represents him, as provided under the Indigent Defense Act. See OCGA §§ 17-12-1; 17-12-12 (a). That act also requires the State to fund the costs of obtaining expert assistance for indigent capital defendants. See OCGA § 17-12-12.1 (c) (providing that the Council, “with the assistance of the Georgia capital defender division, shall establish guidelines for all expense requests for cases in which the death penalty is sought,” including, but not limited to, expert and investigative fees); Phan v....
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Putnal v. State, 814 S.E.2d 307 (Ga. 2018).

Cited 1 times | Published | Supreme Court of Georgia | May 7, 2018

...or further proceedings consistent with this opinion. 1. Because Putnal is indigent, the capital defender division of the Georgia Public Defender Council ("Council") represents him, as provided under the Indigent Defense Act. See OCGA §§ 17-12-1 ; 17-12-12 (a). That act also requires the State to fund the costs of obtaining expert assistance for indigent capital defendants. See OCGA § 17-12-12.1 (c) (providing that the Council, "with the assistance of the Georgia capital defender division, shall establish guidelines for all expense requests for cases in which the death penalty is sought," including, but not limited to, expert and investigative fees); Phan v....
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Mccullough v. State, 304 Ga. 290 (Ga. 2018).

Published | Supreme Court of Georgia | Aug 20, 2018