Weldon v. Hawkins

Per curiam. Leroy Hawkins filed in Chatham Superior Court a petition for writ of habeas corpus seeking his release from Coastal Correctional Institution on the grounds that two convictions for burglary under which he was being held were unlawful. The habeas corpus court held a hearing and found that Hawkins’ convictions should be set aside for want of effective assistance of counsel. The state appeals. 1. The state’s first enumeration of error contends that the trial court erred in refusing to continue the hearing in order that the state might obtain further evidence. The trial court did not err in refusing to continue the hearing because no motion for continuance was made. The transcript of the hearing reflects the following colloquy between counsel for the state and the court: “THE COURT: You think it would be a better plan to get more evidence? “COUNSEL: I think it would be helpful to have it. Yes, Your Honor, I think it would be helpful to the court and certainly it would help me to understand exactly if we had [Hawkins’ trial counsel] here and he could sit on the witness stand and tell us in more detail the circumstances surrounding this decision on his part.” The observation that additional evidence might be helpful is not the equivalent to a motion for continuance, and this enumeration of error is without merit. [189] Decided June 28, 1983. Michael J. Bowers, Attorney General, Nicholas G. Dumich, Assistant Attorney General, Lamar C. Walter, Special Assistant Attorney General, for appellant. Leroy Hawkins, pro se. 2. The state next contends that the trial court erred in relying upon an affidavit of Hawkins’ trial counsel when the affidavit was never introduced into evidence. The affidavit in question was prepared by the state, filed with the record in the case, and served upon Hawkins. It was not admitted formally into the evidence. Nonetheless, its content was first suggested by the state’s counsel, and offered in good faith to assist the court in attempting to understand the contentions of Hawkins, who appeared without counsel. “COUNSEL: Your Honor, I have an affidavit here that the court may want — to clear up some of the problems. There were two jury trials, evidently. This is an affidavit from petitioner’s attorney... I’ll be glad to read this affidavit or submit it to the court, some three pages, I believe.” A party may not quarrel with the consideration of an affidavit which he himself has procured and submitted to the court. This enumeration of error is without merit. 3. The state’s final enumeration of error contends that the trial court erred in finding that Hawkins was not provided effective assistance of counsel. That determination being within the province of the trial court as the trior of fact, it will not be disturbed unless unsupported by the evidence. McDuffie v. Jones, 248 Ga. 544, 551 (283 SE2d 601) (1981). Under this standard of review, we decline to hold that the finding is unsupported by evidence, and this enumeration, alike, is without merit. Judgment affirmed. All the Justices concur.