Rickman, Judge.After a jury trial, David Black was convicted of aggravated sexual battery and child molestation. He appeals, claiming that the trial court abused its discretion by failing to require retained counsel to properly withdraw from the case and forcing Black to trial with unprepared counsel. Black argues that the trial court’s actions violated his Sixth Amendment right to effective assistance of counsel and to competent counsel of his choice. We agree and reverse.The record shows that a month and a day after his privately-retained attorney appeared without reservation “as counsel for Defendant in the above-captioned matter,” and only two months after being indicted for a crime bearing a possible life sentence, Black appeared at a Monday trial calendar call without counsel, and without notice that on the previous Thursday his retained counsel had filed an untimely[1] motion to withdraw. After Black notified the assigned judge that retained counsel had just told him in the hall that he would not be representing Black at trial, and without the court addressing retained counsel’s motion to withdraw or considering its merits, the assigned judge told Black that he should hire counsel or be prepared to conduct the trial pro se the following Monday. The judge also gave Black “a very stern lecture about showing up to calendar call without a lawyer.”[2]Later that day Black obtained appointed counsel, who on the same day notified the court that he would be representing Black. When he did so, the same judge, who appeared still to be angry at Black, instructed appointed counsel that no request for a continuance would be granted and the case would be tried the following Monday. One week later, despite trying two felony cases in the interim, appointed counsel stood in court and announced ready to defend Black from the serious charges facing him. One day after that, Black was found guilty, taken into custody, and eventually sentenced to life (to serve 25 years) on one of the two charges against him.Adding to the discontinuity in this case, the assigned judge presided at the calendar call and at sentencing, and a substitute judge presided at trial and at the hearing on the motion for new trial, which motion that judge denied. In his order, the substitute judge even noted that “[t]o date, retained counsel has still not been officially ordered withdrawn from the case.” Nevertheless, despite not presiding at the calendar call where Black appeared without counsel and where the assigned judge neither considered nor ruled upon the motion to withdraw, the substitute judge found that Black was at fault for “failing to maintain contact with retained counsel” and that Black himself “deprived [appointed counsel] of time . . . to prepare [Black's] case.” The judge added, “[Black] is the author of the condition in which he finds himself. He will not now be heard to complain.”At Black’s jury trial the state presented three witnesses–the victim, the victim’s forensic interviewer, and a police investigator who observed the forensic interview–and introduced a video recording of the forensic interview. The defense called the victim’s mother as its sole witness.Viewed in favor of the verdict, the evidence showed that Black lived with the victim’s mother. The victim lived with her maternal great grandmother, but would often stay with her mother and Black. On July 29, 2016, when the victim was 12 years old, she accompanied her mother to a fast food restaurant where she told her mother that Black had raped her. That same day, the victim sent text messages to her father stating “David’s going to prison soon yayyyy,” because he had raped her. The father reported the allegations to the police, who arranged a forensic interview of the victim. During that interview, the victim stated that Black had been touching her inappropriately for a couple of years and had inserted something into her vagina. At trial, the victim testified that Black had touched her breasts and vagina, but that he had not inserted anything into her vagina.Black moved for a directed verdict on the aggravated sexual battery count based on the victim’s testimony that nothing had been inserted into her vagina. The State responded that during the recorded forensic interview, the victim stated that Black had penetrated her vagina with his finger. The court denied the motion, finding that the evidence presented a question of fact for the jury.The jury found Black guilty of both counts–aggravated sexual battery and child molestation. The trial court imposed a life sentence, with 25 years in confinement and the remainder on probation, for the aggravated sexual battery, and imposed a concurrent 20-year sentence for the child molestation. Black filed a motion for new trial, which, following a hearing, the trial court denied. Black appeals.1. We agree with Black that the trial court abused its discretion at the trial calendar call when it impliedly granted Black’s retained counsel’s motion to withdraw without consideration of the merits of the motion and, later that day, by sua sponte refusing to consider any motion for a continuance by appointed counsel.(a) Retained counsel filed the motion to withdraw on the Thursday before the Monday trial calendar call, and the motion included an affidavit signed by retained counsel. In addition to being untimely as shown above, the motion was flawed in several ways. First, the certificate of service states that retained counsel “[did] not have a proper mailing address to notify [Black],” and there is no evidence that Black received notice of the motion before he appeared at the calendar call. Second, the motion to withdraw did not comply with the Uniform Rule of Superior Court 4.3 (1) in that it did not “state that the attorney has given written notice to the affected client setting forth the attorney’s intent to withdraw, that 10 days have expired since notice, and there has been no objection, or that withdrawal is with the client’s consent.” Third, the motion and the attached affidavit were internally inconsistent: the motion stated that counsel should be allowed to withdraw because he had been “retained for bond purposes only and filed as counsel in this matter in error,” yet the record shows that retained counsel represented Black for one month and that he had waived arraignment, demanded a list of witnesses, and elected to engage in reciprocal discovery on behalf of Black.[3] The affidavit further differed from the motion in that it stated that withdrawal should be permitted because Black failed to maintain contact and failed to provide fees for continued representation. In addition, the motion stated that Black would not be prejudiced by retained counsel’s withdrawal because “the state has no objection to withdrawal and a continuance from this trial calendar to allow defendant to obtain new counsel.”Rather than attempt to resolve the untimely nature of the motion, the obvious discrepancies it contained, and the potential prejudice it posed to Black, the assigned judge simply instructed Black that his trial would occur the following week and that he had to either obtain different counsel or be prepared to proceed pro se. In so doing, the judge failed to properly exercise her discretion–or indeed, exercise any discretion–with respect to retained counsel’s motion to withdraw.Although a trial court’s decision to grant or deny a motion to withdraw is entrusted to a court’s discretion, see Miller v. Lomax, 333 Ga. App. 402, 406 (3) (a) (773 SE2d 475) (2015), a court abuses its discretion by wholly failing to exercise that discretion. See generally Brown v. State, 133 Ga. App. 56, 60 (6) (209 SE2d 721) (1974) (“[W]hen a judge passes on a matter, in which he has a discretion, and fails and refuses to exercise that discretion (especially where the judge lets it be known that he believes he has no discretion) the judgment thus reached is erroneous and should be set aside.”). By wholly failing to exercise discretion by neglecting to consider and address the motion for withdrawal, the trial court erred.[4]The court also erred because under well-established Georgia law, “[a] formal withdrawal of counsel cannot be accomplished until after the trial court issues an order permitting the withdrawal. Until such an order properly is made and entered, no formal withdrawal can occur and counsel remains counsel of record.” (Citation and punctuation omitted.) Tolbert v. Toole, 296 Ga. 357, 362 (3) (767 SE2d 24) (2014); see generally White v. State, 302 Ga. 315, 319 (2) (806 SE2d 489) (2017) (“[L]egal representation continues–unless interrupted by entry of an order allowing counsel to withdraw or compliance with the requirements for substitution of counsel, see USCR 4.3 (1)(3)–through the end of the term at which a trial court enters a judgment of conviction and sentence on a guilty plea.”). Yet, here, as acknowledged in the order denying Black’s motion for new trial, “[t]o date, retained counsel has still not been officially ordered withdrawn from the case.” Nevertheless, Black was forced to go to trial–on criminal charges that potentially (and actually) carried a life sentence–with alternative counsel after receiving legally insufficient notice and none of the requisite inquiry into whether retained counsel should have been permitted to withdraw.(b) The assigned judge also failed to exercise her discretion regarding the possible need for a continuance by instructing appointed counsel that no continuance would be granted. “[A] myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.” (Citations omitted.) Ungar v. Sarafite, 376 U.S. 575, 589 (IV) (84 SCt 841, 11 LE2d 921) (1964); see Smith v. Greek, 226 Ga. 312, 317 (175 SE2d 1) (1970) (“Undue haste in the administration of the criminal law is as much to be condemned as unnecessary delay. The true course lies between these extremes.”) (citation and punctuation omitted). In short, a court should not impede the request for a continuance; rather, “the trial judge, in the exercise of his discretion to grant or refuse a continuance, has to consider the facts and circumstances of each case to determine what the ends of justice require.” Hill v. State, 161 Ga. App. 346 (1) (287 SE2d 779) (1982). By refusing to consider a continuance, the assigned judge wholly failed to consider the factors that could justify delaying the trial, and failed to take into account whether prejudice would result to Black, including that retained counsel asserted in the motion for withdrawal that “the state has no objection to withdrawal and a continuance from this trial calendar to allow defendant to obtain new counsel.” Accordingly, the assigned judge again abused her discretion.2. The above-described abuses of discretion resulted in a structural error–deprivation of Black’s counsel of choice–that requires reversal and, under the circumstances, a new trial.“[T]he Sixth Amendment right to counsel of choice . . . commands, not that a trial be fair, but that a particular guarantee of fairness be provided–to wit, that the accused be defended by the counsel he believes to be best.” United States v. GonzalezLopez, 548 U.S. 140, 146 (II) (126 SCt 2557, 165 LE2d 409) (2006). When that right is violated “[n]o additional showing of prejudice is required to make the violation ‘complete’ . . . [and] it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation.” Id. at 146-148 (II). Further, the erroneous deprivation of the right to counsel of choice is a structural defect for which harmless error analysis is inapplicable. Id. at 150 (III).Black had a right to counsel of choice even though he ultimately obtained appointed counsel. “A defendant exercises the right to counsel of choice when he moves to dismiss retained counsel, regardless of the type of counsel he wishes to engage afterward[, i.e., regardless whether he thereafter engages appointed counsel].” United States v. JimenezAntunez, 820 F3d 1267, 1271 (III) (11th Cir. 2016). It follows that a defendant also exercises the right to counsel of choice by opposing retained counsel’s improper attempted withdrawal, even if he thereafter is forced to obtain appointed counsel. Thus, under the circumstances, the fact that Black ultimately obtained appointed counsel does not mean that he waived his right to counsel of choice.Further, although “the right to counsel of choice does not extend to defendants who require counsel to be appointed for them,” (citations omitted.) GonzalezLopez, 548 U.S. at 152 (IV),[5] there is nothing in the record to show that the assigned judge determined that Black required counsel to be appointed for him or assessed whether Black was diligent in obtaining the services of retained counsel. Rather, obviously peeved at Black, the assigned judge chose to blame him for appearing without counsel, forced him to proceed to trial in one week’s time without his retained counsel, and thwarted any possible request for a continuance by newly appointed counsel.Nor can it be said that Black waived his right to counsel of choice at the calendar call given that he was still represented by retained counsel at the time; rather, Black was abandoned by retained counsel. See Georgia Rule of Professional Conduct (“Rule”) 1.3 (a lawyer “shall not without just cause to the detriment of the client in effect wilfully abandon or wilfully disregard a legal matter entrusted to the lawyer”). And given that pro se filings by represented parties are unauthorized and without effect, see Tolbert, 296 Ga. at 363 (3), we fail to see how Black, who was still represented at the time of the calendar call, can be said to have waived his right to counsel of his choice by failing to act pro se to object to the court’s actions.Finally, it is true that a trial court has “wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar.” (Citations omitted.) GonzalezLopez, 548 U.S. at 152 (IV). Nevertheless, “the withdrawal of counsel immediately before trial so as to leave the defendant unprepared for trial is grounds for continuance.” Greek, 226 Ga. at 317, citing Jackson v. State, 88 Ga. 784 (15 SE 677) (1892). That is so because “the constitutional guaranty of benefit of counsel to one charged with an offense against the laws of this State means something more than the mere appointment [of counsel]such counsel is entitled to a reasonable time to prepare his defense properly.” Smith v. State, 215 Ga. 362, 365 (1) (110 SE2d 635) (1959); see, e.g., Spillers v. State, 145 Ga. App. 809 (1) (245 SE2d 54) (1978) (abuse of the court’s discretion to refuse continuance without giving appointed counsel time to acquaint himself with the case and subpoena medical witnesses).Here, the assigned judge deprived Black of counsel of his choice by implicitly granting retained counsel’s flawed motion for withdrawal and by refusing any request for a continuance, all without exercising any discretion. The assigned judge wholly failed to balance Black’s right to counsel of choice against the demands of her calendar, resulting in a structural error that forced Black to trial with ill-prepared appointed counsel. For these reasons, a new trial is required, which is allowed if the evidence presented at the first trial was sufficient to support the verdict. See Lamar v. State, 278 Ga. 150, 153 (2) (598 SE2d 488) (2004); Talifero v. State, 319 Ga. App. 65 (734 SE2d 61) (2012).3. On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979); Towry v. State, 304 Ga. App. 139 (695 SE2d 683) (2010). “We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia.” (Citation omitted.) Wilson v. State, 318 Ga. App. 37 (733 SE2d 345) (2012). The evidence, recounted above, was sufficient to support the verdict. Accordingly, the State may retry Black.4. Given our reversal of the convictions on the above grounds, we need not address Black’s contentions that appointed counsel was ineffective in multiple regards or that the trial court erred regarding the admission of certain evidence. See Brown v. State, 303 Ga. 158, 165 (3) (810 SE2d 145) (2018).Judgment reversed. Markle, J., concurs and McFadden, P. J., concurs specially.** THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF APPEALS RULE 33.2(a).”In the Court of Appeals of Georgia
