Scroggins v. the State., S10A1073.
| Decision Date | 14 December 2010 |
| Docket Number | No. S10A1073.,S10A1073. |
| Citation | 703 S.E.2d 622,288 Ga. 346 |
| Parties | SCROGGINSv.The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
H. Maddox Kilgore, Marietta, for appellant.Garry T. Moss, District Attorney, Lawton W. Scott, J. Clifford Head, Assistant District Attorneys, for appellee.HINES, Justice.
This Court granted a writ of certiorari to the Court of Appeals to review that Court's dismissal of Samuel Scroggins's application for discretionary appeal. For the reasons that follow, we reverse, and remand.
In 2001, Scroggins was convicted of theft by receiving, forgery, and financial transaction card fraud, and sentenced to probation. On August 5, 2008, his probation was revoked. On July 20, 2009, he moved in the trial court for an out-of-time discretionary appeal, and the trial court granted that motion on August 13, 2009. Scroggins's subsequent application for discretionary appeal was dismissed by the Court of Appeals as untimely from the probation revocation; that Court stated in its order that the trial court did not have the authority to grant an out-of-time discretionary appeal. Upon application to this Court for a writ of certiorari, we granted the writ, thus granting Scroggins's application for discretionary appeal; in our order instructing him to file a notice of appeal, we directed the parties to address whether a trial court has the authority to grant an out-of-time discretionary appeal.
After the appeal was docketed in this Court, the State moved for this Court to dismiss it as improvidently granted, noting that on September 2, 2008, Scroggins had filed a notice of appeal, stating that appeal was taken from the August 5, 2008 order revoking his probation. No action was taken on this notice of appeal by the trial court clerk, and no direct appeal was ever docketed in the Court of Appeals based upon the September 2, 2008 notice of appeal. The notice of appeal was never addressed by either the Court of Appeals or the trial court.1
An order revoking probation may only be appealed by the discretionary procedures set forth in OCGA § 5–6–35. See OCGA § 5–6–35(a)(5); State v. Wilbanks, 215 Ga.App. 223, 450 S.E.2d 293 (1994). Nonetheless, on September 2, 2008, Scroggins chose to pursue an appellate avenue that was closed to him, and filed the notice of appeal. Even though this course was ill-chosen, the notice of appeal acted as supersedeas and deprived the trial court “of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect.” Upton v. Jones, 280 Ga. 895, 896(1), 635 S.E.2d 112 (2006) (Citations and punctuation omitted.). See also Chambers v. State, 262 Ga. 200, 201(1), 415 S.E.2d 643 (1992). Although the September 2, 2008 notice of appeal did not result in a transcript and record being transmitted to the Court of Appeals, and no appeal was ever docketed in that Court, for the purposes of the trial court's jurisdiction, the direct appeal initiated on September 2, 2008, remained pending.2 Thus, the trial court did not have the authority to supplement its order revoking probation with the order purporting to grant an out-of-time discretionary appeal, which would essentially establish a second appellate avenue to review the probation revocation before the first appeal of that ruling was resolved. Upton, supra. Because of the pending first appeal, the application for discretionary appeal, and the order authorizing it, were nullities. Elrod v. State, 222 Ga.App. 704(1), 475 S.E.2d 710 (1996).
However, the State's motion to dismiss cannot be granted. ...
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...of appeal acted as supersedeas and deprived the trial court of the power to affect the judgment appealed...."7 Scroggins v. State , 288 Ga. 346, 347, 703 S.E.2d 622 (2010) (citation and punctuation omitted)."[A]n appellate court is the sole authority in determining whether a filed notice of......
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