Livingston v. State

• Decision Date: 29 May 1996
• Docket Number: A96A1256,Nos. A96A0679,s. A96A0679
• Citation: 472 S.E.2d 317,221 Ga.App. 563
• Parties: LIVINGSTON v. The STATE. SMITH v. The STATE.
• Court: Georgia Court of Appeals

Page 317

472 S.E.2d 317

221 Ga.App. 563

LIVINGSTON v. The STATE.

SMITH v. The STATE.

Nos. A96A0679, A96A1256.

Court of Appeals of Georgia.

May 29, 1996.

Debra G. Gomez, Macon, for appellant in case no. A96A0679.

Janet S. Willy, Athens, for appellant in case no. A96A1256.

Charles H. Weston, Dist. Atty., Robin O. Flanders, Laura D. Hogue, Asst. Dist. Attys., for appellee in case no. A96A0679.

Harry N. Gordon, Dist. Atty., John A. Pursley, Asst. Dist. Atty., for appellee in case no. A96A1256.

BEASLEY, Chief Judge.

Because these cases present similar jurisdictional considerations, they will be treated together. Case No. A96A0679 involves Livingston, who was convicted of conversion of payments for improvement of real property (OCGA § 16-8-15) and four counts of first degree forgery (OCGA § 16-9-1). He represented himself at trial. Case No. A96A1256 involves Smith, who was convicted of armed robbery (OCGA § 16-8-41(a)) and sentenced to life in prison. Both appeal from denials of motions for new trial.

1. Although there has been no motion to dismiss filed in either case, " '[i]t is not only the right but the duty of a reviewing or appellate court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.'... [Cit.]" Landor Condo. Consultants v. Colony Place Condo. Assn., 195 Ga.App. 840, 841, 395 S.E.2d 25 (1990). When appeal is from the denial of a motion for new trial, the notice of appeal "shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion." OCGA § 5-6-38(a).

Although Livingston's trial concluded February 24, 1995, judgment and sentence was not filed until May 9, and he moved for a new trial on June 1. His notice of appeal states that the motion for new trial was denied on October 16, although the court's order recites that the motion was heard on October 30. In either event, his notice of appeal, filed November 10, was within 30 days after the court orally denied his motion. The order was signed and entered December 1. Thus, Livingston's notice of appeal preceded the entry of the written order.

Smith was convicted on August 5, 1994. He filed a motion for new trial on September 1, 1994, but no hearing was held until January 22, 1996. ¹ The court apparently announced at the hearing that the motion would be denied, and Smith filed his notice of appeal the next day, January 23. The court's order denying the motion for new trial was signed on January 24 and entered on January 25. ² Thus, Smith's notice of appeal was two days before entry of the written order.

In a division case, this Court recently held, contrary to previous practice, that premature notices of appeal do not properly invoke this Court's jurisdiction and such appeals must be dismissed. Staton v. State, 219 Ga.App. 316, 317, 464 S.E.2d 888 (1995). In doing so, we interpreted the Georgia Supreme Court's opinion in Rowland v. State, 264 Ga. 872(1), 452 S.E.2d 756 (1995), to encompass appeals with prematurely filed notices as the type of procedurally deficient appeals that require dismissal. Upon reflection, we do not believe Rowland requires that conclusion.

Before Rowland, the Supreme Court determined in Gillen v. Bostick, 234 Ga. 308, 310-311(1), 215 S.E.2d 676 (1975), that prematurely filed notices of appeal did not divest the appellate courts of jurisdiction. See also Hendrick v. State, 257 Ga. 514, n. 1, 361 S.E.2d 169 (1987); Stewart v. State, 257 Ga. 211, n. 1, 212(1), 356 S.E.2d 515 (1987). In both Hendrick and Stewart, the Court pointed out that "the fact that [defendant's] notice of appeal was prematurely filed does not operate to defeat his right of appeal. [Cits.]"

The ruling in Gillen brought about a decision on the merits of such cases, which is the State's public policy. OCGA § 5-6-30; Okross v. State, 205 Ga.App. 694, 695, 423 S.E.2d 291 (1992). It is also in keeping with the spirit of federal constitutional law in criminal cases. See Eller v. State, 183 Ga.App. 724, 360 S.E.2d 53 (1987). Moreover, it prevented piecemeal appellate review and advanced the defendant's right to appeal without prejudicing the State by offending its right to certainty as to the judgment or order being appealed. Gillen, supra. Significantly, it achieved finality of criminal convictions at the earliest possible time, a feature of the criminal justice system of great importance to the public if not to a defendant.

Following these decisions, this Court viewed prematurely filed notices as reaching maturity and effectiveness upon the filing of the judgment or order. Okross, supra; Brinson v. State, 191 Ga.App. 151(1), 381 S.E.2d 292 (1989); Royal v. State, 189 Ga.App. 756(1), 757, 377 S.E.2d 526 (1989); Shirley v. State, 188 Ga.App. 357, 373 S.E.2d 257 (1988); Eller, supra. Such a notice of appeal is not jurisdictionally defective but only procedurally irregular. Because the notice is present in the trial court throughout the 30-day statutory period, indeed from the very beginning of the period, such notice is not untimely, and in fact gives the appellee a head start because it then knows of defendant's appeal decision soon after the court pronounces its ruling in open court. If the judgment or order to which it refers is never filed, the notice of appeal is never effective because the case remains pending in the trial court. Okross, supra at 695, 423 S.E.2d 291. This is the productive and realistic manner in which the Court of Appeals treated such notices immediately prior to Staton and Rowland.

Treating a premature notice as effectively filed upon entry of the order denying the motion for new trial does not violate either the letter or the spirit of OCGA § 5-6-38(a). Since it lacks efficacy before the order is entered, it is simply not legally cognizable until that point. ³ Then it is not only timely under OCGA § 5-6-38(a), but as timely as any notice could ever be. This treatment actually furthers the purposes of the 30-day limitation in OCGA § 5-6-38(a), to keep the case moving towards final disposition while affording a reasonable opportunity for the losing party to consider the appeal. The legislature determined that 30 days was a sufficient period of time, but it never stated that a notice of appeal filed in advance of the actual, clerical entry of the order would gain no legal effect. In fact, it requires expedition of criminal appeals when defendants are incarcerated, as both these defendants are, and the trial court must alert the appellate court of that fact so the objective can be achieved. OCGA § 5-6-43(c). ⁴

In the view of premature notices that we have taken since Gillen, the notice must clearly indicate the order from which it seeks relief; otherwise prejudice to the appellee may result. Gillen, supra. The notice of appeal in Staton, supra at 316, 464 S.E.2d 888, did not "minimally suffice as a timely notice of appeal inasmuch as it contained no reference to the ... judgment from which the appeal was filed. See OCGA § 5-6-37." The cases presented here, like many criminal cases, pose no problem in this regard. There is a familiar pattern: a hearing on the motion for new trial is held, the court announces it is denied, and the appellant promptly files a notice of appeal. The only problem is that the appellant is more prompt than the court, and the order denying the motion is entered after the notice. There is no prejudice to the State; the notice makes it clear what is being appealed. The motion is still in the breast of the court until the order is entered, and if the court decides to grant the motion, the notice from a nonexistent denial is void.

In Rowland, the Supreme Court was presented only with notices of appeal filed after the expiration of the statutory period. Defendant Rowland was sentenced on November 8, 1993; his motion for new trial was filed November 15, amended February 7, 1994, and denied March 9, 1994; and his notice of appeal was filed 43 days after the denial. Rowland, supra at 872, n. 1, 452 S.E.2d 756. Defendant Starks, whose appeal was treated in the same opinion, was convicted in 1990, and after appeal and remand, his motion for new trial was denied on November 16, 1993, but his notice of appeal was not filed until 31 days after the denial. Id. at 872, n. 2, 452 S.E.2d 756.

After reviewing various methods by which the appellate courts of this state have reviewed the merits of procedurally deficient criminal appeals, Rowland determined that appeals with late-filed notices could be properly dismissed, as the availability of an "out-of-time appeal" sufficiently protected a defendant's constitutional rights. Rowland, supra at 875(2), 452 S.E.2d 756. The opinion does not mention premature notices of appeal, does not mention, much less overrule, Gillen, and does not refer to the treatment the Supreme Court itself and this Court have given to premature notices since Gillen.

Good reason answers why this is so. There is a vast difference between a notice which is filed beyond the time allowed by law, and a notice which is filed before it must be. The late notice fails to keep the case extant and to shift jurisdiction to an appellate court. McKinney v. State, 187 Ga.App. 702, 371 S.E.2d 196 (1988). The appeal opportunity dies with the passage of the prescribed period of time, and appellate jurisdiction never attaches. On the other hand, the early notice is dormant in its effect until the ruling it complains of is entered of record. It then effects appellate jurisdiction instantly. It is not "untimely," which is the concern addressed in Rowland. The law sets a maximum time for filing a notice of appeal so as to advance the case to finality without undue delay. That is the primary purpose of the 30-day limit in OCGA § 5-6-38(a); it serves to assure speedy justice, one of the objectives of the Appellate Practice Act. See Chambliss v. Hall, 113 Ga.App. 96(1), 98, 147...