☢ test - Í

Hill v. State, 285 Ga.App. 310, 645 S.E.2d 758 (May 9, 2007). Trial court’s denial of out-of-time appeal reversed and remanded; record does not show whether defendant was advised of his right to indigent counsel on appeal. “‘[T]he right to effective assistance of counsel includes the defendant’s right to be informed of [ ] ... the right to counsel on appeal ( including the right to appointed counsel for indigent defendants ).’ (Emphasis supplied.) Towns v. State, 228 Ga.App. 267(1) (491 S.E.2d 497) (1997). Nowhere does it appear that Hill’s trial counsel advised him that if he could not afford a lawyer that he had the right to have one appointed to represent him.” Trial court to consider on remand whether defendant was indigent, and if so whether he was “fully advise[d] of his rights regarding appeal.” Garland v. State 283 Ga.App. 622, 642 S.E.2d 320 (February 19, 2007). Reversed, see Garland (February 25, 2008), above. Massey v. State, 278 Ga.App. 303, 628 S.E.2d 706 (March 17, 2006). Defendant was represented by retained counsel at trial, but sought appointment of indigent counsel to handle his appeal. Trial court denied application for appointed counsel, citing local “Internal Operating Procedure Rule” requiring retained counsel to represent the defendant through the first appeal. Held, trial court erred in refusing to consider defendant’s affidavit of indigency and application for appointed counsel; however, the error was harmless inasmuch as retained counsel did, in fact, represent defendant on the appeal of the merits of his conviction . “‘[O]nce a defendant claims indigence, he rebuts the presumption that his retained counsel will protect his appellate rights.’ Hawkins v. State, [222 Ga.App. 461, 462(1), 474 S.E.2d 666 (1996). Once Massey satisfied his burden of making the claim of indigence to the trial court, which he did by his affidavit of indigency and petition for appointed counsel, the court had a duty to inquire into the claim, and make a determination about its legitimacy. Here, the trial court improperly presumed that retained counsel would protect Massey’s appellate rights based upon its internal operating procedures which mandated that retained counsel represent defendants through the first direct appeal, notwithstanding any arrangement between counsel and his client to the contrary. It made no determination on the validity of Massey’s indigency claim and request for appointed counsel, and this was improper. Nothwithstanding the fact that the trial court erred in failing to make a determination about the authenticity of Massey’s indigency claim and the appointment of appellate counsel, Massey fails to demonstrate how he has been disadvantaged in any way by his trial counsel’s representation of him on appeal. Massey did not appeal the denial of his appointment of counsel before appellate review, nor does he claim ineffective assistance of counsel. Unlike other cases in which the pro se defendant appealed only the trial court’s denial of indigent counsel or failure to rule on the issue, here Massey has also filed a substantive appeal. See, e.g., Murray v. State, 265 Ga.App. 119 (592 S.E.2d 898) (2004); Schlau v. State, 261 Ga.App. 303 (582 S.E.2d 243) (2003); Mapp v. State, 199 Ga.App. 47 (403 S.E.2d 833) (1991). However he managed it, he has appealed the merits of his case, and thus we are able to consider his enumerations of error without having to remand the case to the trial court for a ruling on his indigency petition. Thus, while the trial court erred in failing to rule on his affidavit of indigency, we find no harm.” Cox v. State, 279 Ga. 223, 610 S.E.2d 521 (March 14, 2005). Trial court has no jurisdiction to appoint substitute appellate counsel once a timely notice of appeal has been filed. Speight v. State, 279 Ga. 87, 610 S.E.2d 42 (March 7, 2005). “In Roberts v. State, 263 Ga. 764 (438 S.E.2d 905) (1994), this Court held that an indigent defendant is entitled to appointed counsel even if he has counsel representing him pro bono.” This is true both at trial (as in Roberts ) and on appeal, as here. Stanley v. State, 267 Ga.App. 379, 599 S.E.2d 331 (May 12, 2004). “The central question on appeal is whether the trial court erred in denying Stanley’s motion for a free transcript of the evidence. Although this is a matter of discretion, ‘we will measure the trial court’s discretion by the standard set out in Britt v. North Carolina, 404 U.S. 226 (92 S.Ct. 431, 30 L.Ed.2d 400) (1971). The United States Supreme Court held in Britt that two factors are relevant to evaluating an indigent defendant’s claim to a free transcript: (1) the transcript’s value in connection with the defendant’s trial or appeal, and (2) the accessibility of other means that would fulfill the same functions as a transcript. Id. at 227. Both factors must be weighed in the indigent defendant’s favor absent a contrary showing in the record, but only where time in weighing the defendant’s request does not appear to be a factor.’ (Citations omitted.) Kier v. State, 240 Ga.App. 152, 153 (525 S.E.2d 102) (1999).” Kane v. State, 265 Ga.App. 250, 593 S.E.2d 711 (January 21, 2004). Defendant was not entitled to appointed counsel for his motion for out-of-time appeal.