Gilmore v. State
Decision Date | 21 September 1972 |
Docket Number | 47490,No. 3,Nos. 47489,s. 47489,3 |
Citation | 193 S.E.2d 219,127 Ga.App. 249 |
Parties | W. J. GILMORE v. The STATE. A. J. McAULIFFE v. The STATE |
Court | Georgia Court of Appeals |
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
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:
'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.
'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). 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 Ga.App. 269, 180 S.E.2d 578.
In McDonald v. Rogers, 229 Ga. 369, 191 S.E.2d 844, our Supreme Court pointed out that 'objections of this nature must be...
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Gilman Paper Co. v. James, 30202
...new motion to dismiss the appeal as suggested in McDonald v. Rogers, 229 Ga. 369, 376, 191 S.E.2d 844 (1972), and Gilmore v. State, 127 Ga.App. 249, 253, 193 S.E.2d 219 (1972). After a thorough reconsideration of that suggested procedure, we have determined that it must be disapproved. The ......
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...ruling on this question to the appropriate appellate court. See McDonald v. Rogers, 229 Ga. 369, 191 S.E.2d 844; Gilmore v. State, 127 Ga.App. 249, 193 S.E.2d 219. 1 Order of court refers to an order of the trial court in extending the time for filing the transcript in the trial court. See ......
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McAuliffe v. Rutledge, 27990
...Court of Appeals of Georgia and the history of the case can be found in the opinion of that court as reported in Gilmore v. The State, 127 Ga.App. 249, 193 S.E.2d 219 (1972). The appellant did not have his criminal case reviewed on the merits in that appeal. Preparation of the trial transcr......
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Irby v. Christian
...same point was raised in the trial court as is permitted even though such motion is filed after the notice of appeal. Gilmore v. State, 127 Ga.App. 249, 193 S.E.2d 219. The record here indicates that the trial judge assigned a date for hearing on this motion but does not disclose that such ......