Opinion
February 18, 1966. Rehearing Denied April 20, 1966.
Appeal from the Circuit Court, Criminal Branch, Jefferson County, Frank A. Ropke, J.
James H. Highfield, Michael O. McDonald, Louisville, for appellant.
Robert Matthews, Atty. Gen., George Rabe, Asst. Atty. Gen., Frankfort, for appellee.
Clyde W. Coles, confined in the penitentiary under a life sentence for armed robbery pursuant to a judgment of April 1959, filed a motion under RCr 11.42 to vacate the judgment on the ground that he was denied effective assistance of counsel at the trial. On the hearing of the motion it was shown that counsel was appointed for Coles at 11:00 a. m. on the day of the trial and the trial began at 2:00 p. m., notwithstanding that counsel had moved for a continuance. However, the judge hearing the motion (who was successor in office to the judge who had presided at the trial) found as a fact, on conflicting testimony of witnesses as to their recollection of what took place on the day of the trial, that Coles had insisted that he be tried on the day set. The judge therefore concluded that Coles had waived his right to effective assistance of counsel, to the extent that effective assistance involved adequate time for preparation. An order was entered overruling the motion to vacate the judgment of conviction, from which order Coles, represented by appointed counsel, has prosecuted this appeal.
In our opinion the evidence was sufficient to support the finding that Coles had insisted upon immediate trial and had intelligently and understandingly waived the right of time for adequate preparation by counsel. There is no question but that such right can be waived. Tanner v. Commonwealth, Ky., 375 S.W.2d 694.
The order is affirmed.