Mitchell v. State

• Citation: 447 S.E.2d 140,214 Ga.App. 69
• Decision Date: 15 July 1994
• Docket Number: No. A94A0506,A94A0506
• Parties: MITCHELL v. The STATE.
• Court: Georgia Court of Appeals

Page 140

447 S.E.2d 140

214 Ga.App. 69

MITCHELL v. The STATE.

No. A94A0506.

Court of Appeals of Georgia.

July 15, 1994.

Mark W. Levine, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Suzanne Wynn, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

This appeal presents the question of how this court should handle a criminal defendant's appeal when the defendant's attorney has failed to file a brief and enumerations of error despite being ordered to do so. In Whittle v. State, 210 Ga.App. 841, 437 S.E.2d 842 (1993), we ruled that we will not decide a case on the merits without a brief and enumerations of error. However, a majority of this court does not think the appeal should simply be dismissed without requiring the trial court to look into whether the defendant should be given another opportunity to appeal. Accordingly, the following order will be issued: "It appearing that defendant's counsel, notwithstanding having been ordered to file an enumeration of errors and brief in this appeal, has failed to do so, IT IS HEREBY ORDERED that this appeal be stricken from the docket of this Court without prejudice to defendant's right to file a direct appeal from his conviction; that the Superior Court of Fulton County, upon return of this case to that court, conduct a hearing at which counsel will be required to show cause why he should not be held in contempt of this Court for his failure to prosecute defendant's appeal; that the Superior Court of Fulton County report to this Court its findings with regard to counsel's failure to prosecute this appeal; and that the Superior Court of Fulton County inquire into defendant's need for appellate counsel and take such action as is appropriate. Following the receipt by this Court of the report of the Superior Court of Fulton County, and following such action as this Court deems appropriate at that time, the appeal may be redocketed in this Court."

The essential difference between the majority and dissent pertains to what happens to a case such as this case after it is removed from our docket--or more accurately, who has the burden of making it happen. Under the dissent's scenario, the defendant has the burden of acting, and it is most likely that nothing will happen. The defendant may or may not receive his copy of the dismissal, but probably will not realize he has the right to request an out-of-time appeal and/or new counsel. Thus, he will do nothing, and will have lost his opportunity to appeal solely because the attorney appointed to represent him did not perform his duty. Under the procedure adopted herein, on the other hand, the trial court must look into the situation even if the defendant does not act, to determine why the first attorney did not perform and whether the defendant needs new counsel.

Appeal dismissed without prejudice and remanded with direction.

POPE, C.J., BIRDSONG, P.J., BLACKBURN, J., and HAROLD R. BANKE, Senior Appellate Judge, concur.

BEASLEY, P.J., and ANDREWS, JOHNSON and SMITH, JJ., dissent.

BEASLEY, Presiding Judge, dissenting.

Mitchell, who was represented at trial, was convicted of armed robbery (OCGA § 16-8-41) and burglary (OCGA § 16-7-1). This appeal was originally docketed in this court on September 1, 1993. On September 29, in accordance with Court of Appeals Rule 14(a), appellant was ordered to file enumerations of error and brief no later than October 4. Appellant's trial counsel requested an extension of time. He advised that he had not been appointed to represent appellant beyond trial but had filed the notice of appeal to protect defendant's rights, that he was undergoing treatment for a serious illness, that the transcript had not been completed, and that a motion for new trial had been filed pro se. On October 19, counsel requested that the case be remanded for a determination on the motion for new trial and completion of the trial transcript. Accordingly, we remanded the case on November 9.

The trial court determined that no motion for new trial had been filed, the record was again transmitted to this court, and the appeal was redocketed on November 22. No action was taken by or on behalf of appellant, and on January 14, 1994, the court ordered enumerations of error and a brief to be filed no later than January 21. To date there is neither enumerations nor brief, and no correspondence.

In Whittle v. State, 210 Ga.App. 841, 437 S.E.2d 842 (1993), we re-examined the rule stated in Lee v. State, 203 Ga.App. 487, 488(1), 417 S.E.2d 426 (1992), and we held that in a pro se case "when an appellant elects to pursue his own appeal, and fails to file enumerations of error or a brief after having been ordered to do so by this court, the appeal will be dismissed." Whittle, supra, 210 Ga.App. at 842, 437 S.E.2d 842. Since our decision in Whittle, we have not confronted the issue raised when appellate procedure is not followed in a case in which the appellant is represented.

"Under Evitts v. Lucey, [469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985),] the State may not cut off a defendant's access to the appeals system because his lawyer provided ineffective assistance by failing to follow mandatory appellate rules. However, Evitts v. Lucey clearly did not require that an appellate court ignore violation of its procedures, and attempt to decide every case on the merits regardless of its posture before the court. 'If instead a state court chooses to dismiss an appeal when an incompetent attorney has violated local rules, it may do so if such action does not intrude upon the client's due process rights.' Evitts v. Lucey, supra at 399 ." Lee, supra, 203 Ga.App. at 491, 417 S.E.2d 426 (Andrews, J., dissenting). "As Evitts v. Lucey made clear in the context of a represented appellant, the task is not to necessarily decide every case on the merits, but to ensure that every criminal defendant is provided due process of law by having adequate and effective access to the state created appeals system." Lee, supra, 203 Ga.App. at 492, 417 S.E.2d 426.

Lee and its companion cases were overruled on this issue in Whittle, supra, 210 Ga.App. at 842, 437 S.E.2d 842. The procedure employed in those cases was not called for by Evitts v. Lucey, supra. Lee, supra, 203 Ga.App. at 489, 417 S.E.2d 426 (Beasley, J., dissenting). To assure that due process requirements are met, as referred to in Evitts, what must be provided is the opportunity for the direct appeal of right which is provided by statute in OCGA § 5-6-33(a)(1). "Nothing in the State or Federal Constitution grants a defendant a right to appellate review...." Thomas v. State, 260 Ga. 262, 263, 392 S.E.2d 520 (1990).

This is a court of review. 1983 Ga. Const., Art. VI, Sec. V, Par. III. Requests for review are initiated by parties, not by the court. If a party does not prosecute the appeal which he or she or it has instigated by filing a notice of appeal and causing the record to be transmitted to this court, there is no basis for us to do anything other than dismiss it for...