Mitchell v. State
| Decision Date | 20 January 1981 |
| Docket Number | No. 60943,60943 |
| Citation | 276 S.E.2d 864,157 Ga.App. 181 |
| Parties | MITCHELL v. The STATE. |
| Court | Georgia Court of Appeals |
Daniel Kane, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Benjamin H. Oehlert, III, Joseph J. Drolet, Russell J. Parker, Asst. Dist. Attys., for appellee.
Ronnie C. Mitchell was convicted of kidnapping with bodily injury, rape and auto theft. He was sentenced to serve two life sentences and seven years, respectively, all concurrently. He brings this appeal enumerating two asserted errors. Held
1. Initially we note that the trial court denied a motion for new trial on May 21, 1980, which was based on the general grounds as well as on an asserted erroneous omission to charge. The notice of appeal, denominated "out of time" was not filed until August 11, 1980, a matter of more than 50 days. Nevertheless, the trial court forwarded the proceedings to this court in compliance with the notice of appeal. The state has called our attention to the delay but has not moved for dismissal of the appeal.
In every matter coming to this court we are required to examine the record to make certain that we possess jurisdiction. Stephenson v. Futch, 213 Ga. 247, 248, 98 S.E.2d 374; Lowe v. Payne, 130 Ga.App. 337, 203 S.E.2d 309. A notice of appeal must be filed within 30 days after entry of appealable judgment or final action on a motion for new trial. Code Ann. § 6-804. Neal v. State, 232 Ga. 96, 205 S.E.2d 284. The record in this case discloses that the time for such filing was not extended by the trial court. The timely filing of a notice of appeal in accordance with the statutory requirement is essential to confer jurisdiction upon an appellate court. Jordan v. Caldwell, 229 Ga. 343, 344, 191 S.E.2d 530; Pittman v. State, 229 Ga. 656, 657, 193 S.E.2d 820. A person convicted of crime in a trial court in this state is not entitled to have his conviction reviewed as a matter of right by an appellate court. He must pursue applicable statutory requirements. State v. Denson, 236 Ga. 239, 240, 223 S.E.2d 640. Though we recognize that this court, for proper reasons, will entertain an out of time appeal, we can find no basis in this record to support that principle. It would appear therefore that the appeal is subject to dismissal for lack of jurisdiction. Smith v. State, 140 Ga.App. 492, 231 S.E.2d 493. Nevertheless, without benefit of court order, the trial court entertained the late notice of appeal and forwarded the record of the proceedings to this court. In the interest of judicial economy, we will consider the appellant's enumerations of error.
2. In his first enumeration, appellant asserts the general grounds. There is no dispute as to the commission of the charged crimes. The only real issue before the court was the credibility of the witnesses establishing the identity of the malefactor. If the state's evidence is believed, there is no question that Mitchell is the person who is guilty. On the other hand, Mitchell's version of the facts would require an acquittal.
We will not speculate as to what evidence the jury chose to believe or disbelieve; on appeal this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury's verdict. Mills v. State, 137 Ga.App. 305, 306, 223 S.E.2d 498; Wren v. State, 57 Ga.App. 641, 644, 196 S.E. 146. Where the testimony of the state and that of the defendant is in conflict, the jury is the final arbiter (Sims v. State, 137 Ga.App. 264, 223 S.E.2d 468; Crews v. State, 133 Ga.App. 764, 213 S.E.2d 34), and after the verdict is approved by the trial judge, the evidence must be construed so as to uphold the verdict even where there are discrepancies. Boatright v. Rich's, 121 Ga.App. 121, 173 S.E.2d 232. The evidence of the primary issue being in conflict, the jury's resolution of that issue against the appellant will be affirmed where the evidence adequately supports the jury's conviction, which it does in this case. Griffin v. State, 237 Ga. 532, 228 S.E.2d 908. Viewed from the standpoint of the state's evidence, any rational trier of fact reasonably would have found all the essential elements of each of the crimes charged beyond reasonable...
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...of his right to appeal”). To the extent that Johnson v. State, 182 Ga.App. 477, 477–478, 356 S.E.2d 101 (1987), and Mitchell v. State, 157 Ga.App. 181, 182, 276 S.E.2d 864 (1981), may be read to allow an out-of-time appeal for reasons of non-constitutional significance, those decisions are ......
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...abandoning an appeal desired by defendant, or failure to advise defendant of his right to appeal. Contra, see Mitchell v. State, 157 Ga.App. 181(1), 276 S.E.2d 864 (1981) [resting upon the principle of judicial economy]; Johnson v. State, 182 Ga.App. 477(1), 356 S.E.2d 101 (1987) [stating t......
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Oller v. State, 76449
...of appeal in accordance with the statutory requirement is essential to confer jurisdiction upon an appellate court." Mitchell v. State, 157 Ga.App. 181(1), 276 S.E.2d 864. However, the statutory time requirement of OCGA § 5-6-38 is to be liberally construed so as to bring about a decision o......
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...his enumerations of error under the reasoning of Thornton v. Ault, 233 Ga. 172, 210 S.E.2d 683 (1974), and Mitchell v. State, 157 Ga.App. 181(1), 276 S.E.2d 864 (1981). See also American Druggists' Ins. Co. v. Harris, 253 Ga. 535, n. 1, 322 S.E.2d 496 (1984), noting that an out-of-time appe......