Opinion
29731.
SUBMITTED MARCH 10, 1975.
DECIDED MARCH 17, 1975. REHEARING DENIED MARCH 27, 1975.
Habeas corpus. Tattnall Superior Court. Before Judge Caswell.
Thomas W. West, for appellant.
The appeal in this case arises from the remand of Freddie Lee Allen to custody after a hearing in a habeas corpus proceeding. The habeas corpus court concluded that the petitioner's court-appointed attorney had advised Allen prior to the trial of his right to appeal in the event he should be convicted, that after the conviction such attorney told Allen that he would consider an appeal and if he concluded an appeal would be meritorious that he would contact him; and that such attorney subsequently decided since there were no errors committed during the trial an appeal should not be pursued. The habeas corpus court then, relying upon cases since disapproved in the decision in Holloway v. Hopper, 233 Ga. 615, held that the responsibility to determine whether to appeal rests upon counsel.
Under the decision in Holloway v. Hopper, supra, the judgment of the habeas corpus court must be reversed and remanded with direction that the convicting court enter an order providing for the appointment of counsel for an appeal in the original conviction to be filed and prosecuted at this time.
Judgment reversed with direction. All the Justices concur, except Nichols, C. J., and Undercofler, P. J., who dissent.