Balkcom v. State

• Decision Date: 15 July 1997
• Docket Number: No. A97A0360,A97A0360
• Citation: 489 S.E.2d 129,227 Ga.App. 327
• Parties: , 97 FCDR 2785 BALKCOM v. The STATE.
• Court: Georgia Court of Appeals

Page 129

489 S.E.2d 129

227 Ga.App. 327, 97 FCDR 2785

BALKCOM v. The STATE.

No. A97A0360.

Court of Appeals of Georgia.

July 15, 1997.

William D. Phillips, Forsyth, for appellant.

Charles H. Weston, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.

BIRDSONG, Presiding Judge.

Arthur Lee Balkcom appeals his conviction of felony involuntary manslaughter and the denial of his motion for new trial. Held:

The State has moved to dismiss this appeal because as a direct appeal, it is untimely, and as an appeal from an extraordinary motion for new trial, it has not been brought by the required discretionary appeals procedure. For the following reasons the State's motion is granted.

Appellant was convicted of involuntary manslaughter on September 16, 1994, and no notice of appeal or motion for new trial was filed within 30 days as statutorily required to perfect a direct appeal. OCGA § 5-6-38(a). On January 23, 1995, however, appellant filed a pro se motion for out-of-time appeal, but this motion was never ruled on by the trial court. Later, on March 23, 1995, appellant filed a pro se extraordinary motion for new trial, and on June 8, 1995, he filed a pro se notice of appeal of the trial court's failure to rule upon his extraordinary motion for new trial. After appellant filed a motion for appointment of counsel in September 1995, the trial court apparently granted this motion as counsel entered an appearance on behalf of appellant on February 23, 1996. On August 1, 1996, appellant's counsel filed an amended motion for new trial which referred to appellant's pro se extraordinary motion for new trial. After the trial court denied the extraordinary motion on September 13, 1996, on September 23, 1996, appellant's attorney filed a notice of appeal purporting to appeal from the 1994 judgment of conviction and the denial of the extraordinary motion for new trial. The appeal was docketed with this Court on October 3, 1996.

Contrary to the dissent's contention, the trial court did not merely unartfully refer to the motion as an extraordinary motion for new trial. After appointed appellate counsel entered the case, counsel filed a motion, captioned an amended motion for new trial, that amended "the motion for new trial previously filed by [Balkcom] pro se as an extraordinary motion for new trial." Therefore it is apparent that Balkcom, the State, and the trial court all considered this motion for what it was--an extraordinary motion for new trial. Even on appeal Balkcom does not contend that this motion was anything other than an extraordinary motion for new trial. Although the dissent relies upon OCGA § 5-5-41, this section, which regulates extraordinary motions for new trial, adds nothing to the dissent's argument.

Moreover, this appeal does not concern a ruling on a motion for out-of-time appeal or a motion for out-of-time motion for new trial. Even though Balkcom filed a pro se motion for an out-of-time appeal, the trial court did not rule on that motion before appellate counsel was appointed, and Balkcom's appointed appellate counsel apparently abandoned the pro se motion for out-of-time appeal by not seeking a ruling on it. Additionally, this record does not support, nor does Balkcom contend, the trial court granted authority for Balkcom to file an out-of-time motion for new trial. Therefore, this was an extraordinary motion for new trial.

Disposition of this motion raises questions concerning the proper procedure for appealing the denial of an extraordinary motion for new trial. Under OCGA § 5-6-35(a)(7), the discretionary appeals procedures are required for "[a]ppeals, when separate from an original appeal, from the denial of an extraordinary motion for new trial." It appears that the legislature, being well aware of the appellate practice in this state, contemplated that most extraordinary motions for new trial would be filed subsequent to and separate from an original appeal, and, thus, would be subject to the discretionary appeals procedure.

Nevertheless, when presented with the question of what appellate procedure is required when no timely notice of appeal was filed and only an extraordinary motion for new trial is filed, a panel of this Court held that the denial of an extraordinary motion for new trial was directly appealable, as it was not separate from the original appeal in the case. Walls v. State, 204 Ga.App. 348, 419 S.E.2d 344. Further reflection reveals, however, that this case is an anomaly because its effect is to allow a party to avoid the consequences of failing to file a timely direct appeal simply by filing an extraordinary motion for new trial. As this practice would be contrary to that contemplated by our legislature in normal appellate circumstances, to the extent Walls can be read to authorize such a procedure, it must be overruled. To do otherwise would thwart the legislative intent expressed in OCGA § 5-6-38(a) by allowing direct appeals of judgments entered more than 30 days before the notice of appeal was filed.

The fact that the notice of appeal filed on September 23, 1996, in this case designates both the judgment of conviction and the denial of the extraordinary motion for new trial as the subject of the appeal does not render this case subject to a direct appeal. Regardless of that designation, because no viable direct appeal was filed in this case, the appeal of the denial of appellant's extraordinary motion for new trial is, per force, separate from the original appeal. Consequently, this is an appeal of the denial of the extraordinary motion for new trial which was filed "separate" from an "original appeal," within the meaning of OCGA § 5-6-35(a)(7). A direct appeal does not lie.

In addition, the position taken in Walls v. State, supra, was rejected by the majority of this Court in the whole court case of Bohannon v. State, 203 Ga.App. 783, 417 S.E.2d 679 (Bohannon I ). Although Bohannon I was reversed by our Supreme Court (see Bohannon v. State, 262 Ga. 697, 425 S.E.2d 653 (Bohannon II )), the reversal was based on the conclusion that the appeal arose from the trial court's grant of an out-of-time motion for new trial, and not from disagreement with the rationale espoused in Bohannon I. The Supreme Court held that "[t]he judgment of the Court of Appeals is reversed because the record shows that the trial court granted an out-of-time appeal and, consequently, this case is not subject to the rules governing extraordinary motions for new trial; that is, no application for appeal was required. We disagree with the Court of Appeals that by seeking (and obtaining) permission to file an out-of-time motion for new trial rather than an out-of-time appeal, Bohannon was necessarily pursuing an extraordinary motion for new trial." (Emphasis in original.) Id.

Under these circumstances the majority's rejection of the dissent's position in Bohannon I is still valid: "If the dissent's analysis were correct, neither a civil nor a criminal appellant would ever have to comply with the jurisdictional 30-day limitation established by OCGA § 5-6-38(a). A civil or criminal appellant could simply file an extraordinary motion for new trial, asserting therein only issues that could and should have been raised in a timely motion for new trial, and then secure a direct appeal by filing a notice of appeal within 30 days of the denial of the extraordinary motion for new trial. Whatever else OCGA § 5-6-35(a)(7) means, it does not purport to confer direct appellate jurisdiction to consider the merits of issues that could and should have been raised in a timely motion for new trial. The law is otherwise clear that an extraordinary motion for new trial is properly denied and will be affirmed on appeal if the motion raises only issues that could and should have been raised in a timely motion for new trial. Gaddis v. State, [245 Ga. 200, 265 S.E.2d 275 ]. The law is also otherwise clear as to the proper method by which a criminal appellant can secure a direct appellate review of issues that could and should have been raised in a timely motion for new trial. That method is to secure leave to file an out-of-time appeal by demonstrating that the lack of diligence was attributable to his counsel and not to himself. Cannon v. State, [175 Ga.App. 741, 334 S.E.2d 342 ]. It is that proper method which appellant in the instant case must follow. To hold, as the dissent suggests, would penalize neither civil nor criminal appellants for their own lack of diligence in pursuing their appellate rights and would effectively repeal the jurisdictional 30-day limitation established by OCGA § 5-6-38(a)." (Emphasis in original.) Bohannon I, supra at 784, 417 S.E.2d 679.

Further, as Walls v. State, supra, was decided on May 27, 1992, after the whole court opinion in Bohannon I, decided on March 13, 1992, but well before the Supreme Court's reversal in Bohannon II on February 5, 1993, it was inconsistent with whole court precedent and, thus, is of doubtful precedential authority. Moreover, considering our Supreme Court's decision in Bohannon II, it is also doubtful that Walls still stands for the proposition it asserted. In Bohannon II, the Supreme Court held that the motion in question was not an extraordinary motion for new trial because the trial court gave permission to file an out-of-time motion for new trial. Bohannon II, supra at 697, 425 S.E.2d 653. As permission was obtained from the trial court to file the motion in Walls, the same reasoning should apply, and the appeal in Walls was from the denial of an out-of-time motion for new trial rather than from an extraordinary motion for new trial. Therefore, Walls was overruled, sub silentio, by the Supreme Court in Bohannon II. To remove all doubt, however, today we specifically overrule Walls v. State, supra.

These questions arise from the statement in OCGA § 5-6-35(a)(7) that extraordinary motions for new trial are subject to...