Denson v. State
| Decision Date | 17 April 1975 |
| Docket Number | No. 3,No. 50403,50403,3 |
| Citation | 134 Ga.App. 876,216 S.E.2d 606 |
| Parties | T. A. DENSON v. The STATE |
| Court | Georgia Court of Appeals |
Weiner & Bazemore, Paul S. Weiner, Jonesboro, for appellant.
William H. Ison, Dist. Atty., Clarence L. Leathers, Jr., Asst. Dist. Atty., Jonesboro, for appellee.
Syllabus Opinion by the Court
Defendant was tried and convicted on a charge of selling malt beverages without a license, and sentenced to 12 months' probation and a $750 fine. Defendant moved for new trial and filed an affidavit of insolvency, stating that he was without funds to pay the court costs and the costs of a transcript of the trial, and sought relief therefrom. The trial judge entered an order which recited that the defendant's counsel and the district attorney had entered into an agreement by which 'the defendant should reimburse the County for expenditures for the transcript of the trial and motions which are related to the above styled case.' The judge's order then ordered the court reporters to prepare 'the complete transcript of all the proceedings . . . and present their bill to be paid for from the funds of the County.' The order further provided that the defendant 'reimburse the County and the Clerk of this Court for any and all expenses incurred which are normally paid for by solvent Defendants and Appellants at the rate of $30 per week commencing March 1, 1973, until the entire amount is paid.' (Emphasis supplied.)
Defendant's motion for new trial was heard and overruled, and defendant appealed.
On June 17, 1974, the state moved to dismiss the appeal on the grounds of an inexecusable delay in transmitting the record to the appellate court (59 days) occasioned by the defendant's failure to pay $187.75 court costs. This motion was set for hearing on July 18, 1974. The judge of superior court dismissed the appeal by order dated July 19, 1974. Defendant appeals this final judgment. Held:
This court is bound by the cases of Cunningham v. State, 232 Ga. 416, 207 S.E.2d 48 and McAuliffe v. Rutledge, 231 Ga. 1, 200 S.E.2d 100. There, the Supreme Court of Georgia, in effect, holds that if the appellant and his attorney fail to follow the prescribed rules for practicing law in bringing cases from the lower courts to the appellate courts for review, we must nevertheless consider his appeal. In the present case there was an inexcusable delay in transmitting the record from the lower court to this court. In the Cunningham case, supra, defendant's attorney made an abortive attempt to appeal, and the Supreme Court of Georgia said that the appellate court must jump into the trenches, fill the breach and review the case on its merits. We do not understand that to be the law, and disagree whole-heartedly and completely with the Cunningham case, and McAuliffe v. Rutledge, 231 Ga. 1, 200 S.E.2d 100, supra, cited as authority, although...
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Ingram v. State
...207 S.E.2d 48. In doing so, we echo the sentiment expressed in Mingo v. State, 133 Ga.App. 385, 210 S.E.2d 835, and in Denson v. State, 134 Ga.App. 876, 216 S.E.2d 606 (Case #50403, April 16, 1975). It is apparent that Blackstone v. State, 131 Ga.App. 666, 206 S.E.2d 553, overlooked in McAu......
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Haynes v. Lake City, 51160
...in transmitting the record to this court. We are bound by these decisions rrespective of the decision of this court in Denson v. State, 134 Ga.App. 876, 216 S.E.2d 606 in which a similar motion to dismiss on similar grounds was made. This court in that case followed the cases of Cunningham ......
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Curtis v. State, 66438
...has been roundly criticized, this court has followed its mandate. See, e.g., Ingram v. State, supra at (1); Denson v. State, 134 Ga.App. 876, 216 S.E.2d 606 (1975), revd. State v. Denson, 236 Ga. 239, 223 S.E.2d 640 (1976); Mingo v. State, 133 Ga.App. 385, 210 S.E.2d 835 (1974). However, in......
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Denson v. State, 50403
...court had dismissed the appeal because of "inexcusable delay in transmitting the record to the appellate court." See Denson v. State, 134 Ga.App. 876, 877, 216 S.E.2d 606. In our judgment of reversal we followed two recent decisions by the Supreme Court of Georgia, to wit: McAuliffe v. Rutl......