Gilmore v. State

• Decision Date: 21 September 1972
• Docket Number: 47490,No. 3,Nos. 47489,s. 47489,3
• Parties: W. J. GILMORE v. The STATE. A. J. McAULIFFE v. The STATE
• Court: Georgia Court of Appeals

Page 219

193 S.E.2d 219

127 Ga.App. 249

W. J. GILMORE v. The STATE.

A. J. McAULIFFE v. The STATE.

Nos. 47489, 47490.

Court of Appeals of Georgia, Division No. 3.

Sept. 21, 1972.

Rehearing Denied Oct, 10, 1972.

Grogan, Jones & Layfield, John C. Swearingen, Jr., Columbus, for appellants.

E. Mullins Whisnant, Dist. Atty., William J. Smith, Columbus, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

These companion cases present for consideration the dismissal by the trial judge of the appeals to this court filed by two defendants. Appellants make three contentions: (a) Application for extension of time for filing the transcript of evidence was timely made; (b) any delay was attributable to the court reporter and not to counsel; and (c) the order of dismissal is a violation of defendants' constitutional rights in failing to grant them due process.

Following verdicts of guilty and entry of sentences in separate cases each of the defendants filed notice of appeal. Five applications for extension of time for filing transcript of evidence were made and granted. The last orders of the court dated March 30, 1972, contained the usual language granting the additional extension for a period of 30 days. This made the expiration date April 29, 1972, which was a Saturday. 'The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.' Code Ann. § 81A-106(a). Therefore, Monday, May 1, 1972, was the last day of the 30 day period.

The following developments are quoted from the trial court's dismissal order dated May 31, 1972:

'Counsel for the appellant, on May 1, 1972, came to the Chambers of this Court to present an Application for Extension of Time for Filing Transcript. Not finding the Court present, counsel did not leave the application with the secretary of the Judge of this Honorable Court, or leave a message for this court to call him.

'On May 1, 1972, the Court was present in its Chambers at various times throughout the day, including a period of time following counsel for appellant's attempt to present the Application for Extension of Time for Filing Transcript.

'On May 3, 1972, counsel for the appellant did make personal contact with the Court and present an Application for Extension of Time for Filing Transcript. An order was signed on May 3, 1972, granting said extension for a period of 30 days; however, the order bore the date of May 1, 1973, and through inadvertence the correct date was not inserted. On May 26, 1972, the District Attorney of Muscogee County, Georgia, filed a motion to dismiss defendant's appeal and a hearing was set down on said motion at 10:00 a.m., May 31, 1972. The basis for the District Attorney's Motion was that notwithstanding the fact that the defendant's Application for Extension of Time for Filing Transcript was dated May 1, 1972, the same did not fall within the 30-day extension of time granted by the order of March 30, 1972, and the same was not signed until May 3, 1972.

'At said hearing, the aforesaid facts were stipulated by the District Attorney and defense counsel as true and correct. It was further stipulated that under the rules of local Court each individual Judge handles all extensions of time granted in the original case, as well as all other matters on appeal. Upon stipulation as aforesaid, it is

'Ordered, adjudged and decreed that defendant's Application for Extension of Time was not within the 30-day extension granted by the previous order of this Court on March 30, 1972, and that the Motion to Dismiss the appeal is sustained, and said appeal is hereby dismissed.'

These appeals are from the dismissal orders of May 31, 1972. Held:

1. 'Any application . . . for an extension must be made before expiration of the period for filing as originally prescribed or as extended by a permissible previous order . . .' Code Ann. § 6-804 (Ga.L.1965, pp. 18, 21). '(The Supreme Court) has repeatedly held that the provisions of this Act are mandatory and unless complied with the appeal must be dismissed. Davis v. Davis, 222 Ga. 579, 151 S.E.2d 123; Threatt v. McElreath, 223 Ga. 153, 154 S.E.2d 20; and Fleming v. Sanders, 223 Ga. 172, 154 S.E.2d 14.' Joiner v. State, 223 Ga. 367, 368, 155 S.E.2d 8, 9. See also Hardy v. D. G. Machinery &c. Co., 224 Ga. 818, 165 S.E.2d 127 and Hardwick v. State, 227 Ga. 467, 181 S.E.2d 376. The mandatory nature of this provision is shown in our court having emphasized the words 'must be made before expiration' in Martin Theaters v. Lloyd, 118 Ga.App. 835, 836, 165 S.E.2d 909, 910. Recent cases in this court conforming with such ruling are Abel v. J. H. Harvey Co., 126 Ga.App. 115, 190 S.E.2d 87 and Bretz v. Fitzgerald, 126 Ga.App. 367, 190 S.E.2d 619.

If the application is timely presented to the court, it does not have to be signed immediately by the judge as the order may be entered after the expiration of the period. Elliott v. Leathers, 223 Ga. 497, 501, 156 S.E.2d 440. But as was held in Baxter v. Long, 122 Ga.App. 500, 177 S.E.2d 712, a nunc pro tunc entry cannot be used to correct a failure to comply with the mandatory requirement of timely presentation.

In the present instance the temporary absence from chambers of the trial judge is not sufficient to constitute a legal excuse. It must be remembered that a day consists of 24 hours, from midnight to midnight (Dinkler v. Jenkins, 118 Ga.App. 239, 163 S.E.2d 443) and Georgia judges frequently have had home visits from attorneys after hours for obtaining necessary judicial signatures.

Recognizing the expressed legislative intent in the Appellate Procedure Act of 1965 for liberal construction 'so as to bring about a decision on the merits of every case appealed, and to avoid dismissal of any case . . .' (Code Ann.Supp. § 6-905), the rules of our appellate courts were modified on March 2 of this year to provide that 'appellee shall be deemed to have waived any failure . . . relating to the filing of the transcript of evidence unless objection thereto was made and ruled upon in the trial court prior to transmittal.' The district attorney having made the objection to the trial court in conformity with this rule, the judge below properly sustained the dismissal motions. See also Johnson v. State, 122 Ga.App. 785, 178 S.E.2d 743 and Black v. State, 123...