Donovan v. State, A21A1407

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtMcFadden, Presiding Judge.
Citation362 Ga.App. 408,868 S.E.2d 808
Parties DONOVAN v. The STATE.
Docket NumberA21A1407
Decision Date31 January 2022

362 Ga.App. 408
868 S.E.2d 808

DONOVAN
v.
The STATE.

A21A1407

Court of Appeals of Georgia.

January 31, 2022


868 S.E.2d 809

Frances C. Kuo, Lawrenceville, for Appellant.

Dixon A. Lackey, Herbert McIntosh Poston Jr., for Appellee.

McFadden, Presiding Judge.

362 Ga.App. 408

After a jury trial, John Patrick Donovan was convicted of two counts of felony cargo theft for stealing a semitrailer and its contents. See OCGA § 16-8-22 (b) (1). The trial court permitted Donovan to represent himself in post-conviction proceedings and, acting pro se, Donovan filed an unsuccessful motion to modify his sentence and represented himself in proceedings related to a motion for new trial previously filed by counsel. The trial court denied the motion for new trial and Donovan, now represented by counsel, filed this appeal.

As detailed below, we find no merit in Donovan's argument that the trial court lacked jurisdiction to rule on his motion for new trial. But we agree with Donovan that he did not validly elect to represent himself in post-conviction proceedings. So we vacate the order denying Donovan's motion to modify his sentence and the order denying his motion for new trial, which the trial court entered while Donovan was representing himself in post-conviction proceedings, and we remand this case to the trial court for the post-conviction process to "start anew." Allen v. Daker , 311 Ga. 485, 505 (4), 858 S.E.2d 731 (2021).

Given this disposition, we do not address Donovan's remaining claims of error.

1. Trial court's jurisdiction to consider motion for new trial.

Donovan argues that the trial court lacked jurisdiction to rule on his motion for new trial. He asserts that the trial court was divested of jurisdiction when, on October 28, 2019, Donovan filed a notice of appeal from the trial court's order denying his pro se motion to modify his sentence. But the record shows that Donovan's motion for new trial was pending when Donovan filed the notice of appeal from the order denying the motion to modify his sentence; the motion for new trial was filed prematurely on November 16, 2018 and ripened on December 7, 2018, when the trial court entered the judgment of conviction and sentence. See Southall v. State , 300 Ga. 462, 465-466 (1), 796 S.E.2d 261 (2017).

When a "motion for new trial is pending, any notice of appeal to an appellate court has not yet ripened, and absent an applicable

362 Ga.App. 409

exception such as an interlocutory appeal provided in OCGA § 5-6-34 (b), any appeal must be dismissed." Jackson v. State , 310 Ga. 224, 226 (1), 850 S.E.2d 131 (2020) (citation and punctuation omitted). For this reason, the notice of appeal that Donovan filed while his motion for new trial was pending did not divest the trial court of jurisdiction to rule on the motion for new trial.

2. Donovan's election to represent himself in post-conviction proceedings.

Donovan argues that the trial court erred when, on April 10, 2019, the trial court ruled that Donovan could represent himself in post-conviction proceedings. We agree.

868 S.E.2d 810

Donovan had a right to counsel in post-conviction proceedings, including the proceedings related to his motion for new trial. See Allen , 311 Ga. at 497 (2), 858 S.E.2d 731 (using phrase "post-conviction proceedings" to include motion-for-new trial proceedings in considering a defendant's right to counsel). Although Donovan could "validly elect to represent himself during post-conviction proceedings by waiving his right to counsel either expressly or functionally[,]" id. at 497 (2), 858 S.E.2d 731 (citations omitted), the record shows that he did not waive his right to counsel in either way.

(a) There was no express waiver of the right to post-conviction counsel.

Donovan did not make a valid, express waiver of post-conviction counsel. "In most cases, before a defendant may properly proceed pro se in initial post-conviction proceedings and on direct appeal, he must be advised of the dangers of such self-representation and knowingly, intelligently, and voluntarily waive his right to appellate counsel on the record." Allen , 311 Ga. at 498 (2) (a), 858 S.E.2d 731. See generally Faretta v. California , 422 U. S. 806, 835 (V), 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ("[I]n order to represent himself, the accused must ‘knowingly and intelligently’ forgo [the traditional benefits associated with the right to counsel]. Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.") (citations and punctuation omitted).

In Allen v. Daker , our Supreme Court held that an express waiver of the right to post-conviction counsel could not be based solely on the court's warnings about the dangers of self-representation at trial. See Allen , 311 Ga. at 498-499 (2) (a), 858 S.E.2d 731 (holding that "the record demonstrate[d] that Daker did not receive warnings regarding the dangers of self-representation on appeal and [so] did not expressly waive his right to appellate counsel" even though the trial court had "explained to Daker in detail the consequences of his self-representation

362 Ga.App. 410

at trial and found that he was aware of his rights and the consequences of proceeding without an attorney [at that stage]"). As in Allen , the trial court in this case conducted a pretrial Faretta hearing in response to Donovan's earlier request to represent himself at trial, and at that hearing the trial court advised Donovan of the dangers of self-representation at trial. But those pretrial warnings did...

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  • GeorgiaCarry.org Inc. v. Atlanta Botanical Garden, Inc., A21A1479
    • United States
    • United States Court of Appeals (Georgia)
    • 31 Enero 2022
    ...the proper procedure5 in exempting the Garden from ad valorem taxes has no bearing on whether the City and the Garden intended to create 868 S.E.2d 808 an estate for years or a usufruct through the lease.For the reasons stated above, the trial court did not err in granting summary judgment ......
1 cases
  • GeorgiaCarry.org Inc. v. Atlanta Botanical Garden, Inc., A21A1479
    • United States
    • United States Court of Appeals (Georgia)
    • 31 Enero 2022
    ...the proper procedure5 in exempting the Garden from ad valorem taxes has no bearing on whether the City and the Garden intended to create 868 S.E.2d 808 an estate for years or a usufruct through the lease.For the reasons stated above, the trial court did not err in granting summary judgment ......

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