Butts v. State
Decision Date | 08 June 2000 |
Docket Number | No. A99A2145.,A99A2145. |
Citation | 244 Ga. App. 366,536 S.E.2d 154 |
Parties | BUTTS v. The STATE. |
Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Larry Butts, pro se.
Richard E. Currie, District Attorney, James D. Lamb, Assistant District Attorney, for appellee.
In February 1996, a jury found Larry Butts guilty of three counts of selling cocaine. At the conclusion of the sentencing hearing on February 29, 1996, the trial court sentenced Butts to three concurrent life terms. No appeal followed.
More than three years later, acting pro se, Butts filed a verified request to proceed in forma pauperis. The court apparently did not rule on this request. Butts then filed a motion styled as "Out [sic] Time Motion For New Trial," in which he raised the general grounds and ineffective assistance and in which he also contended that he was denied the right to appeal his convictions despite having "requested an appeal from his counsel and was made to belief [sic] that an appeal was pending in the Georgia Court of Appeals." After conducting a hearing on the merits, the trial court denied the motion.
The order now being challenged denied Butts's "out-of-time motion for new trial." Butts submitted an application for discretionary appeal and also filed a direct appeal. In dismissing the discretionary application, this Court treated the case as involving a ruling on an out-of-time appeal, which is directly appealable.1
The right to an appeal is not absolute and may be waived.2
We have carefully reviewed the transcript of the hearing on the motion for out-oftime appeal. Butts's trial counsel testified that although he did not have an independent recollection of informing Butts of his appeal rights, it was his customary practice to inform each convicted client of such (including that the client had 30 days to file the appeal), which practice he invariably followed. He expressly denied that Butts ever asked him to appeal the case and further denied that he led Butts to believe that an appeal was pending. Butts testified that counsel did not inform him that he had 30 days to appeal and that he did not learn of such until 1997.
The court was entitled to believe the testimony of Butts's counsel, which was sufficient to authorize the court to find that Butts had been informed of his appeal rights and had voluntarily waived same, and to find that Butts's right to a timely appeal was not frustrated through ineffective assistance of counsel.9 Since we apply the "any evidence" standard to findings of the trial court when it is acting as the trier of fact,10 we hold the trial court did not abuse its discretion in denying the motion for out-of-time appeal.11
Judgment affirmed.
POPE, P.J., and SMITH, P.J., concur.
1. See Randolph v. State, 220 Ga.App. 769, 770, 470 S.E.2d 300 (1996) ( ); compare OCGA §...
To continue reading
Request your trial-
Richards v. State
...appeal is directly appealable when the criminal conviction at issue has not undergone appellate review. Id.; Butts v. State, 244 Ga.App. 366, 536 S.E.2d 154 (2000); Barnes v. State, 243 Ga.App. 703, 534 S.E.2d 440 (2000). Due to the very nature of an out-of-time appeal, it is not a remedy a......
-
Moore v. The State
...with his trial attorney, a trial court properly denies the motion for an untimely appeal.(Punctuation and footnotes omitted.) Id. at 367, 536 S.E.2d 154. In other words, ineffective assistance of counsel must be the sole reason for the failure to file the appeal; “[a]n out-of-time appeal ........
- DeLoach v. State
-
Hood v. State
...court for resentencing. The denial of a motion for an out-of-time appeal is, in general, directly appealable. Butts v. State, 244 Ga. App. 366–367, 536 S.E.2d 154 (2000) (denial of motion for out-of-time appeal is directly appealable); see Richards v. State, 275 Ga. 190, 191, 563 S.E.2d 856......