Donald Houston appeals from his conviction of child molestation and the denial of his motion for a new trial. Houston contends that the trial court erred in ordering him to proceed to trial unassisted by counsel without establishing that he had made a voluntary and knowing waiver of his right to counsel. Houston's contention is meritorious.

Houston appeared in court on the date of his trial without an attorney. At that time, the trial judge refused to appoint a lawyer to represent Houston and refused to continue the case to allow Houston the opportunity to retain an attorney. The court stated that over a year earlier, at his arraignment, Houston was instructed to hire an attorney because the public defender had determined that Houston was not indigent and therefore did not qualify for the public defender's services. Further, the court said that since the arraignment the public defender had determined that Houston still was not indigent. The record contains no evidence, however, that the court itself ever questioned Houston as to his financial situation or attempted to make a determination, independent of the public defender's claims, as to whether Houston was indigent. Moreover, the record contains no evidence that the judge ever asked Houston his reasons for appearing in court without an attorney. Although the court refused to appoint an attorney to represent Houston or to continue the case, it did have an attorney sit with Houston and advise him during the trial. Nonetheless, the court clearly ruled that the attorney, acting "as a friend of the court," was merely sitting with Houston and was not being appointed to represent him. The trial transcript shows that the attorney actively participated in the trial by questioning both state and defense witnesses, although it is clear from the record that he was not given time to prepare a defense for the trial.

Moreover, we find that this abuse of discretion was not cured either by the court's order that an attorney "sit" with Houston during the trial or by the attorney's active participation in the trial. The trial court's ruling and the attorney's conduct amounted to a denial of assistance of counsel. "The benefit of counsel guaranteed by the Georgia Constitution is not satisfied merely because the defendant is represented by counsel on his trial, but his counsel is entitled to a reasonable time after his employment to prepare a defense in order that he may adequately and effectively represent his client. [Cit.]" Lowrance v. State, 183 Ga. App. 421, 422 (1) (359 SE2d 196) (1987). Here, the attorney was not given a reasonable time to prepare a defense on behalf of Houston. Accordingly, the trial court erred in failing to insure that Houston knowingly and voluntarily waived his right to counsel.

Lindsay A. Tise, Jr., District Attorney, for appellee.