Cannon v. State

• Decision Date: 04 September 1985
• Docket Number: No. 70242,70242
• Citation: 175 Ga.App. 741,334 S.E.2d 342
• Parties: CANNON v. The STATE.
• Court: Georgia Court of Appeals

Page 342

334 S.E.2d 342

175 Ga.App. 741

CANNON v. The STATE.

No. 70242.

Court of Appeals of Georgia.

Sept. 4, 1985.

Albert F. Burkhalter, Jr., Harvey C. Brown, Jr., Rome, for appellant.

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

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 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 necessitating an analytical departure in the instant case from the established law of this State. See Cunningham v. State, 232 Ga. 416, 207 S.E.2d 48 (1974). "[W]here the right of appeal is lost because of counsel's conduct, granting of an out-of-time appeal is appropriate. [Cit.]" Harper v. State, 154 Ga.App. 550, 551, 269 S.E.2d 56 (1980).

An out-of-time appeal is not authorized, however, in every criminal case which involves a failure by counsel to follow the applicable procedure necessary to secure appellate review. "A person convicted of a crime in a trial court in this state ... must pursue applicable statutory requirements. A convicted party can, by his own conduct or by his conduct in concert with that of his attorney, forfeit his appeal. If a convicted party by his own conduct, or by his conduct in concert with that of his attorney, purposefully delays the appeal of his conviction to his own advantage, he forfeits appeal and review of his conviction on the merits by an appellate court." State v. Denson, 236 Ga. 239, 240, 223 S.E.2d 640 (1976). An out-of-time appeal is not authorized if the loss of the right to appeal is not attributable to ineffective assistance of counsel but to the fact that the defendant himself slept on his rights. Henry v. Hopper, 235 Ga. 196, 219 S.E.2d 119 (1975).

From the foregoing, it is clear that disposition of a motion for an...