Gable v. State

• Decision Date: 17 November 2011
• Docket Number: No. S11A1070.,S11A1070.
• Citation: 11 FCDR 3668,720 S.E.2d 170,290 Ga. 81
• Parties: GABLE v. The STATE.
• Court: Georgia Supreme Court

11 FCDR 3668
290 Ga. 81
720 S.E.2d 170

GABLE
v.
The STATE.

No. S11A1070.

Supreme Court of Georgia.

Nov. 17, 2011.

[720 S.E.2d 171]

Adam S. Levin, for appellant.

Lee Darragh, Dist. Atty., Lindsay H. Burton, Asst. Dist. Atty., Stewart, Melvin & Frost, Lydia J. Sartain, Gainesville, for appellee.

Hunton & Williams, Jason M. Beach, Lawrence J. Bracken II, Rhani M. Lott, Sarah E. Geraghty, Raoul D. Schonemann, Atlanta, amici curiae.NAHMIAS, Justice.

[290 Ga. 81] We granted certiorari in this case to consider whether a trial court has the authority to grant an out-of-time discretionary appeal [290 Ga. 82] in a criminal case as a remedy for counsel's failure to timely file a discretionary application. We conclude that Georgia courts do not have such authority where, as here, that remedy is not required by a violation of the appellant's constitutional rights.

1. In 1995, a jury found Appellant Homer Gable guilty of rape, aggravated sodomy, aggravated child molestation, and six counts of child molestation. The Court of Appeals affirmed on direct appeal. See Gable v. State, 222 Ga.App. 768, 476 S.E.2d 66 (1996). Appellant was represented by counsel at trial and on appeal. In October 2008, Appellant filed a pro se extraordinary motion for new trial under OCGA § 5–5–41 based on the alleged recantation of one of the victims. In November 2008, the trial court appointed a public defender to represent him. The court denied the extraordinary motion for new trial on July 30, 2009. Appellant's counsel filed a notice of appeal.

The Court of Appeals dismissed Appellant's direct appeal due to failure to follow the discretionary appeal procedure required by OCGA § 5–6–35. That statute says that appeals in certain types of cases, including “[a]ppeals, when separate from an original appeal, from the denial of an extraordinary motion for new trial” § 5–6–35(a)(7), must be taken by filing an application for discretionary appeal with the appropriate appellate court “within 30 days of the entry of the order, decision, or judgment complained of,” § 5–6–35(d).

On December 10, 2009, Appellant filed a motion for an out-of-time discretionary appeal with the trial court, which the court granted the next day on the ground that Appellant's counsel was ineffective in failing to file a timely application for discretionary appeal. Appellant then filed an application for discretionary appeal with the Court of Appeals. The Court of Appeals ruled that the trial court did not have the authority to grant an out-of-time discretionary application and dismissed Appellant's application because he did not file it within 30 days of the original, July 30, 2009, trial court order denying his extraordinary motion for new trial. This Court granted certiorari.

2. (a) The Court of Appeals has held that the failure to meet the statutory deadline for filing a discretionary appeal is a jurisdictional defect. See Wilson v. Carver, 252 Ga.App. 174, 174, 555 S.E.2d 848 (2001). See also Spurlock v. Dept. of Human Resources, 286 Ga. 512, 525, 690 S.E.2d 378 (2010) (Nahmias, J., concurring specially) (citing Wilson v. Carver for the proposition that “[o]ur appellate courts have no jurisdiction over an untimely application”). That holding is consistent with this Court's cases holding that compliance with the statutory deadline for filing a notice of appeal is an “absolute requirement” to confer jurisdiction on an appellate court. See, e.g., Cody v. State, 277 Ga. 553, 553, 592 S.E.2d 419 (2004); [290 Ga. 83] Gulledge v. State, 276 Ga. 740, 741, 583 S.E.2d 862 (2003); Legare v. State, 269 Ga. 468, 469, 499 S.E.2d 640 (1998);

[720 S.E.2d 172]

Rowland v. State, 264 Ga. 872, 872, 452 S.E.2d 756 (1995).

The initial statutory deadline for filing both a notice of appeal and a discretionary application is 30 days. See OCGA § 5–6–38(a) (notice of appeal); OCGA § 5–6–35(d) (discretionary application). In addition, however, OCGA § 5–6–39 provides statutory authority to trial and appellate courts to grant extensions of the deadlines for certain types of filings. ¹ In Rosenstein v. Jenkins, 166 Ga.App. 385, 304 S.E.2d 740 (1983), the Court of Appeals held that, “[w]hile the trial court has the authority under OCGA § 5–6–39 [ (a)(1) ] to grant a 30–day extension of time for filing a notice of appeal, there is no comparable authority for granting an extension of time for filing an application for discretionary appeal.” Id. See also Wilson v. Carver, 252 Ga.App. 174, 174, 555 S.E.2d 848 (2001) (stating that “this court lacks the authority to grant an extension of time for the filing of an application for discretionary appeal,” citing Rosenstein and Court of Appeals Rule 16(c), which provides that “[n]o extension of time shall be granted for filing interlocutory or discretionary applications or filing responses thereto”).

Judge McFadden's treatise on appellate practice suggests that Rosenstein was wrongly decided because it failed to address whether discretionary applications come within subsection (a)(5) of OCGA § 5–6–39, which authorizes the grant of extensions for “[a]ny other similar motion, proceeding, or paper for which a filing time is prescribed.” See Christopher J. McFadden, Edward C. Brewer, and [290 Ga. 84] Charles R. Sheppard, Georgia Appellate Practice with Forms § 19:3 n.6 (2011–2012 ed.) (“Georgia Appellate Practice”). The treatise explains that it is not surprising that § 5–6–39(a) does not specifically list discretionary applications as a type of filing for which extensions are authorized, because

there was no discretionary appeal procedure when O.C.G.A. § 5–6–39 was enacted. O.C.G.A. § 5–6–39 was enacted with the Appellate Practice Act of 1965 and has not been amended since. Ga. Laws 1965, p. 18, § 6. O.C.G.A. § 5–6–35, which provides for discretionary appeals, was...