Cannon v. State, 70242

CourtUnited States Court of Appeals (Georgia)
Citation175 Ga.App. 741,334 S.E.2d 342
Docket NumberNo. 70242,70242
PartiesCANNON v. The STATE.
Decision Date04 September 1985

Page 342

334 S.E.2d 342
175 Ga.App. 741

No. 70242.
Court of Appeals of Georgia.
Sept. 4, 1985.

[175 Ga.App. 743] Albert F. Burkhalter, Jr., Harvey C. Brown, Jr., Rome, for appellant.

Stephen F. Lanier, Dist. Atty., Deborah D. Haygood, Asst. Dist. Atty., for appellee.

Page 343

[175 Ga.App. 741] CARLEY, Judge.

Appellant appeals from the denial of his motion for an out-of-time appeal. In January of 1980, appellant was convicted of kidnapping, rape and two counts of aggravated sodomy. In February of 1980, a timely motion for new trial was filed. In July of 1980, the motion for new trial was denied. No timely notice of appeal was thereafter filed. According to appellant's counsel, he did not discover until January of 1983 that the motion for new trial had been denied. The failure of counsel to make that discovery earlier was attributed by him to the manner in which the order had been filed by the clerk's office. However, it was not until November of 1984, some twenty-two months after the discovery, that appellant instituted the instant proceeding for an out-of-time appeal. The trial court, after conducting a hearing on appellant's motion, denied it.

In Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 84 L.Ed.2d 841 (1985), the Supreme Court of the United States held that due process is violated if a criminal defendant's first appeal of right is dismissed for procedural deficiencies attributable to the ineffective assistance of his counsel. Although the Evitts decision establishes a rule of constitutional dimension, the State of Georgia has long recognized the right to effective assistance of counsel on appeal from a criminal conviction and has provided for ameliorative relief in the form of an out-of-time appeal. "An attorney who through negligence, ignorance, or misinterpretation of the law ..., fails to perform routine duties resulting in a dismissal of his client's appeal, thereby denying such client a right of review after conviction cannot be said to be rendering effective assistance.... [T]he appellant [who] was indeed denied effective assistance[175 Ga.App. 742] of counsel in attempting to appeal his conviction ... [shall] be allowed, if he so desires, to file an out of time appeal to the proper appellate court...." McAuliffe v. Rutledge, 231 Ga. 745, 746, 204 S.E.2d 141 (1974) (cited in Evitts v. Lucey, supra 469 U.S. at ---- fn. 9, 105 S.Ct. at 837 fn. 9). Accordingly, we do not construe the Evitts decision as...

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40 cases
  • Holt v. State, A92A0596
    • United States
    • Georgia Court of Appeals
    • July 16, 1992
    ...and on first appeal as of right 'and has provided for ameliorative relief in the form of an out-of-time appeal.' Cannon v. State, 175 Ga.App. 741 (334 SE2d 342) [ (1985) ]." Brantley v. State, 190 Ga.App. 642, 643(1), 379 S.E.2d 627 (1989). In Hunter v. State, supra, the defendant had enter......
  • Rowland v. State
    • United States
    • Georgia Supreme Court
    • January 24, 1995 perform routine duties, appellant is entitled to an out-of-time appeal. McAuliffe v. Rutledge, supra. See also Cannon v. State, 175 Ga.App. 741, 334 S.E.2d 342 (1985). A defendant granted an out-of-time appeal by the trial court will have 30 days from the grant to file a notice of appeal......
  • Cain v. State
    • United States
    • Georgia Supreme Court
    • November 25, 2002
    ...of who bears the ultimate responsibility for the failure to file a timely appeal, the attorney or the client." Cannon v. State, 175 Ga.App. 741, 742, 334 S.E.2d 342 (1985). Compare Johnson v. State, 182 Ga.App. 477(1), 356 S.E.2d 101 (1987) (trial court authorized to grant motion even thoug......
  • Morrow v. State
    • United States
    • Georgia Supreme Court
    • November 6, 1995
    ...235 Ga. 196, 198, 219 S.E.2d 119 (1975); Thornton v. State, 216 Ga.App. 202, 203, 453 S.E.2d 802 (1995); Cannon v. State, 175 Ga.App. 741, 742, 334 S.E.2d 342 (1985) (Carley, J.); Harper v. State, 154 Ga.App. 550, 551, 269 S.E.2d 56 (1980).3 Henry, 235 Ga. at 198, 219 S.E.2d 119; Evans v. S......
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