Snelson v. State, 77520

• Decision Date: 15 February 1989
• Docket Number: No. 77520,77520
• Parties: SNELSON v. The STATE.
• Court: Georgia Court of Appeals

Page 723

378 S.E.2d 723

190 Ga.App. 320

SNELSON v. The STATE.

No. 77520.

Court of Appeals of Georgia.

Feb. 15, 1989.

Lawrence E. Diamond, for appellant.

Lewis R. Slaton, Dist. Atty., for appellee.

POPE, Judge.

1. The State has moved to dismiss defendant's appeal based on defendant's failure to file a timely notice of appeal and the absence of any proper authorization for an out-of-time appeal. "The requirement of a timely filed notice of appeal is jurisdictional, even as to criminal cases, and, absent an extension, upon the failure to file such notice within 30 days after a judgment becomes final the appeal must be dismissed." Rimes v. State, 182 Ga.App. 721, 356 S.E.2d 897 (1987) and cits. The dissent's assertions to the contrary, the Supreme Court's decision in Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) does not require a different result. In Evitts the defendant's retained counsel filed a timely notice of appeal but then failed to file his "statement of appeal" containing such information as the names of the parties, counsel and the trial judge, as required by the Kentucky Rules of Appellate Procedure. However, as the Supreme Court specifically noted, the rule requiring the filing of the statement of appeal was not jurisdictional in nature but rather was designed merely to assist in the processing of appeals. Consequently, Evitts v. Lucey does not pertain to jurisdictional requisites such as the timely filing of a notice of appeal and does not require us to review cases over which we have no jurisdiction. Rather, Evitts merely forestalls the dismissal of criminal cases that are otherwise properly before an appellate court for consideration but in which counsel fails to comply fully with the procedural or technical rules of that court.

In Johnson v. State, 183 Ga.App. 168, 358 S.E.2d 313 (1987), cited by the dissent, the notice of appeal was timely mailed and would have been timely received except for confusion concerning the proper recipient of the notice. In the case at bar, the notice of appeal was filed seventy-seven days late. Defendant made no attempt to timely file the notice of appeal and offered no extenuating circumstances to excuse the late filing. The failure to file a timely notice of appeal is not a technical or procedural error, but rather constitutes a lack of compliance with a jurisdictional prerequisite, the necessity of which neither the parties nor this court can dispense with. Consequently, the State's motion to dismiss is granted.

2. Defendant's enumeration of error concerning the sufficiency of the evidence is rendered moot by the foregoing.

Appeal dismissed.

BIRDSONG, SOGNIER and BEASLEY, JJ., concur.

DEEN, P.J., concurs and also concurs specially.

CARLEY, C.J., concurs specially.

McMURRAY and BANKE, P.JJ., and BENHAM, J., dissent.

CARLEY, Chief Judge, concurring specially.

I fully agree with the majority that under Rimes v. State, 182 Ga.App. 721, 356 S.E.2d 897 (1987) and many other decisions, the failure of appellant to timely file a notice of appeal in this case is jurisdictional and that the appeal therefore must be dismissed. However, contrary to the majority, I do not believe that Johnson v. State, 183 Ga.App. 168, 358 S.E.2d 313 (1987) is distinguishable as a matter of law. It is my opinion that this Court was as effectively deprived of jurisdiction by the late filing of the notice of appeal in Johnson as the majority correctly holds is true in the present case. I would overrule Johnson v. State, supra.

I am authorized to state that Presiding Judge DEEN joins in this special concurrence.

McMURRAY, Presiding Judge, dissenting.

In my view, the decision in Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821, requires that the case sub judice be decided on the merits. Also, in Johnson v. State, 183 Ga.App. 168, 358 S.E.2d 313, a recent whole court case, this court considered the case on its merits rather than dismiss for untimely filing of the appeal. Therefore, I respectfully dissent since I believe the court should address the merits of defendant's enumerations of error.

I am authorized to state that Judge BENHAM joins in this...