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DEEN, Presiding Judge.
Motor vehicle theft. Fulton Superior Court. Before Judge McKenzie.
We held in Spillers v. State, 145 Ga. App. 809, that where a public defender is appointed for a defendant and given only a half day to prepare for trial, due to no fault of the defendant, the attorney's motion for a continuance should be granted. The special concurrence of Judge Banke in that case, herein adopted, is to the effect that if the fault in nonrepresentation lies with the defendant in failing to obtain or in firing an attorney at the last minute, this rule will not apply. In the present case, the facts are very skimpily set forth. It is obvious that the case had been called several times, that the defendant stated he had paid an attorney to represent him, that this attorney on several occasions asked to be and finally was excused on the day the case was called, that the defendant first chose to represent himself, pleading inability to pay, but after a conversation with the court was persuaded that it was to his advantage to use the services of the public defender. It is further established that immediately on the public defender accepting the case a jury was drawn the same afternoon, and the trial proceeded the next morning, the attorney's motion for continuance having been denied.
Under Spillers, supra, the public defender was given insufficient time to prepare the defense. We cannot say with any certainty that the fault of nonrepresentation lay with the defendant rather than his attorney.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Donald J. Stein, Assistant District Attorneys, for appellee.
Robert M. Coker, for appellant.
SUBMITTED JUNE 5, 1978 -- DECIDED JUNE 29, 1978.
Friday May 22 03:40 EDT

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