Fullwood v. Sivley

• Decision Date: 01 June 1999
• Docket Number: No. S99H0240.,S99H0240.
• Citation: 517 S.E.2d 511,271 Ga. 248
• Parties: FULLWOOD v. SIVLEY.
• Court: Georgia Supreme Court

517 S.E.2d 511

271 Ga. 248

FULLWOOD v. SIVLEY.

No. S99H0240.

Supreme Court of Georgia.

June 1, 1999.

Reconsideration Denied July 6, 1999.

Stacy Fullwood, pro se.

John C. Pridgen, District Attorney, for appellee.

CARLEY, Justice.

On February 22, 1988, Fullwood entered a guilty plea in the Superior Court of Crisp County to a charge of possessing cocaine with intent to distribute. The trial court accepted the plea and imposed a ten-year first offender probated sentence. In February of 1998, Fullwood attempted to file a pro se habeas corpus petition in Crisp County, challenging his 1988 conviction. On February 17, 1998, the habeas court, citing OCGA § 9-15-2, denied filing of the petition on the ground that venue was not proper in Crisp County. As with any other order of a lower court, the merits of the habeas court's order denying filing of a petition cannot be reached by an appellate court unless and until it is established that the court has jurisdiction to do so. In this regard, the habeas court informed Fullwood, within the text of the order, that his right to appeal was governed by OCGA § 9-14-52. OCGA § 9-14-52(a) provides that "as to final orders of the court which are adverse to the petitioner no appeal shall be allowed unless the Supreme Court of this state issues a certificate of probable cause...." Under this unambiguous language, OCGA § 9-14-52 is applicable with respect to a final adverse order entered in a habeas proceeding, and does not require the entry of a final order addressing the merits of the petitioner's claim. Clearly, an order denying filing of a habeas petition pursuant to OCGA § 9-15-2 is a final order which is adverse to the petitioner, because it has the effect of denying any of the relief sought. See OCGA § 9-14-52(a). Accordingly, the habeas court correctly informed Fullwood of the proper procedure for obtaining appellate review of its order. Cf. Giles v. Ford, 258 Ga. 245, 368 S.E.2d 318 (1988) (classified as a "habeas" case).

Although Fullwood was informed as to the proper appellate procedure, he failed to comply with OCGA § 9-14-52(b), because, within 30 days of the habeas court's order, he did not file a written application seeking this Court's issuance of a certificate of probable cause to appeal therefrom. Instead, within that time period, he filed only a notice of direct appeal to the Court of Appeals. On April 10, 1998, the Court of Appeals correctly transferred the case to this Court, on the ground it is within our exclusive jurisdiction over habeas corpus cases. Because of Fullwood's failure to comply with OCGA § 9-14-52(b), however, the record did not contain a timely filed application for a certificate of probable cause. It was only on April 15, 1998, almost 30 days late, that Fullwood finally applied to this Court for a certificate of probable cause to appeal the habeas court's order.

This Court is not at liberty "to ignore jurisdictional and procedural statutes and rules, and to change its role from disinterested decision-maker to appellate advocate reviewing a trial record for error." Rowland v. State, 264 Ga. 872, 874(1), 452 S.E.2d 756 (1995). Indeed, "`(I)t is the duty of this [C]ourt to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction. (Cits.)' [Cit.]" Rowland v. State, supra at 872(1), 452 S.E.2d 756. This holding is firmly based upon the principle that there is no federal or state constitutional right to bring an appeal. "Instead, the right of appeal depends upon statute." State v. Smith, 268 Ga. 75, 485 S.E.2d 491 (1997). Included among those jurisdictional and procedural statutes which cannot be ignored and must be applied is OCGA § 9-14-52(b), providing, in relevant part, that if an unsuccessful petitioner for a writ of habeas corpus "desires to appeal, he must file a written application for a certificate of probable cause to appeal with the clerk of the Supreme Court within 30 days from the entry of the order denying him relief." (Emphasis supplied.) There is no dispute that Stacy Fullwood, the unsuccessful petitioner for habeas in this case, failed to comply with this statutory mandate.

In Patterson v. Earp, 257 Ga. 729, 730, 363 S.E.2d 248 (1988), this Court held that "OCGA § 9-14-52(b) requires an application for certificate of probable cause to appeal habeas corpus denials." (Emphasis supplied.) We further concluded that compliance with that requirement is jurisdictional. "Since no application for a certificate of probable cause to appeal was made in this case, this appeal must therefore be dismissed." (Emphasis supplied.) Patterson v. Earp, supra at 730, 363 S.E.2d 248. Thus, the requirement that the unsuccessful petitioner timely apply for a certificate of probable cause is more than a procedural nicety related to securing appellate review of adverse judgments. Cases are not dismissed for failure to comply with procedural niceties, but only for failing to comply with jurisdictional prerequisites. Although an application for a certificate of probable cause was filed in this case, it was late. There is no legal distinction between the failure to file any application and the failure to file a timely application. In either event, there is a lack of compliance with the jurisdictional requirement of OCGA § 9-14-52(b). An appellant's strict adherence to statutorily mandated time limits has always been considered an absolute requirement to confer jurisdiction upon an appellate court. Rowland v. State, supra at 872(1), 452 S.E.2d 756 (30-day time limit of OCGA § 5-6-38(a)). In habeas corpus cases, the General Assembly has determined that the unsuccessful petitioner must timely file both a notice of appeal and an application for a certificate of probable cause in order to invoke this Court's jurisdiction. This Court cannot denigrate the General Assembly's determination by considering either a timely notice of appeal or a timely application as a mere procedural nicety. By filing his notice of appeal timely, Fullwood may have substantially complied with one of the elements for obtaining appellate review, but he failed utterly to satisfy the equally mandatory requirement that he also file a timely application for a certificate of probable cause. Patterson v. Earp, supra. Patterson was not decided in the precise context of a procedurally defective appeal by a pro se petitioner for state habeas corpus. However, Patterson does deal with the statutory requirement of applying for a certificate of probable cause, and we are cited to no authority for the anomalous proposition that OCGA § 9-14-52(b) is properly construed as jurisdictional if the unsuccessful habeas corpus applicant is represented by counsel and as a mere procedural nicety if the applicant is acting pro se. The decision in Patterson clearly stands for the proposition that OCGA § 9-14-52(b) imposes upon all unsuccessful habeas corpus applicants the jurisdictional requirement of filing a timely application for a certificate of probable cause. Moreover, in Smith v. Nichols, 270 Ga. 550, 552(1), 512 S.E.2d 279 (1999), we unanimously held that OCGA § 9-14-52 "does not authorize a prisoner to appeal directly [from] the denial of a petition for habeas corpus relief." If Fullwood can obtain a decision on the merits simply by filing a timely notice of appeal, then he is being afforded the right to bring a direct appeal which Smith clearly held to be unauthorized. Smith cannot be ignored and that case is controlling authority for the proposition that an application for a certificate of probable cause and a notice of appeal are both necessary to invoke this Court's jurisdiction over an appeal from the denial of a petition for habeas corpus. The only jurisdictional question for resolution is, therefore, whether this Court has the authority to waive enforcement of OCGA § 9-14-52(b) in that regard.

Habeas corpus is the "great writ," but a petition seeking its issuance does not constitute a continuation of the petitioner's original appeal of his criminal conviction nor does it initiate a second appeal therefrom. In the Matter of Stoner, 252 Ga. 397, 398, 314 S.E.2d 214 (1984). Habeas corpus is a civil, not a criminal, remedy. Green v. Caldwell, 229 Ga. 650, 651(1), 193 S.E.2d 847 (1972). Moreover, the fact that habeas corpus has been called an "equitable" remedy does not authorize a court to ignore the body of statutes, rules, and precedents governing its issuance. Lonchar v. Thomas, 517 U.S. 314, 319(II), 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996). Equity cannot supersede the positive enactments of the General Assembly. Lewis v. Bd. of Ed. of Lowndes County, 183 Ga. 687, 690(1), 189 S.E. 233 (1936). Among the statutes governing the issuance of a writ of habeas corpus in this state is OCGA § 9-14-52(b), the unambiguous legislative intent of which is "to require a judicial certification of probable cause as a prerequisite to appeal in a habeas case decided adversely to a petitioner and to establish the procedure for obtaining such certification and for pursuing such appeal." (Emphasis supplied.) Reed v. Hopper, 235 Ga. 298, 299(4), 219 S.E.2d 409 (1975). Such statutes have always been considered as establishing jurisdictional conditions which must be met by the party seeking to appeal, and which the appellate court must enforce. Patterson v. Earp, supra. "[T]he right of appeal is not absolute, but is one based upon the conditions imposed by the General Assembly for bringing cases to the appellate courts." Fife v. Johnston, 225 Ga. 447, 169 S.E.2d 167 (1969). "The provisions of the law respecting the procedure to be followed in perfecting appeals to this court are jurisdictional, and unless this court has jurisdiction of a case, it is without power or authority to render a judgment upon review." Spivey v. Nalley, 212 Ga. 810, 96 S.E.2d 260 (1957).

Compliance with the jurisdictional time limits are strictly...