State v. Brienza

• Citation: 829 S.E.2d 894,350 Ga.App. 672
• Decision Date: 20 June 2019
• Docket Number: A19A0698,A19A0699
• Parties: The STATE v. BRIENZA. Brienza v. The State.
• Court: United States Court of Appeals (Georgia)

350 Ga.App. 672

829 S.E.2d 894

The STATE

v.BRIENZA.

Brienza

v.The State.

A19A0698

A19A0699

Court of Appeals of Georgia.

June 20, 2019

Jamie K. Inagawa, Solicitor-General, Joseph B. Myers, Jr., Assistant Solicitor-General, for the State.

Gregory M. Brown, for Brienza.

Dillard, Chief Judge.

In Case No. A19A0698, the State appeals from the State Court of Fayette County's grant of Tyler Brienza's motion to exclude the use of certain portions of a video recorded during his encounter with police, which led to charges of obstruction of justice. The State argues the trial court erred in suppressing the relevant portion of the recording after concluding that, at the point it was made, officers lacked reasonable, articulable suspicion to continue detaining Brienza. This is the second time this appeal has been docketed with this Court, and in Case No. A19A0699, Brienza challenges the trial court's failure to dismiss the State's appeal for the reasons that resulted in our prior remand—i.e. , the failure to transmit a complete transcript. For the reasons set forth infra , we reverse the trial court's decision in Case No. A19A0699 and dismiss the State's appeal in Case No. A19A0698.

Case No. A19A0699.

Before reaching the merits of the State's appeal in Case No. A19A0698, we must first address whether that appeal is properly before us.

Brienza was charged by accusation with obstruction of a law-enforcement officer¹ and disorderly conduct.² He subsequently filed a "motion in limine," seeking to exclude "all testimony from any and all state witnesses that resulted from the prolonged detention and investigation ... without reasonable articulable suspicion." Following a hearing, the trial court granted this motion in a summary order.

The record in Case No. A19A0698 shows that after the State initially filed its notice of appeal to the trial court's grant of Brienza's motion in April 2017, Brienza moved three months later, in July 2017, to dismiss the State's appeal due to a failure to timely request production of the transcript. But by the time the motion came before the trial court for argument at a scheduled hearing, the appeal had already been transmitted to and docketed in this Court as Case No. A18A0213. Accordingly, Brienza conceded that the trial court no longer retained jurisdiction to consider his motion to dismiss, and it was then denied as moot.

Nevertheless, after the case was docketed with this Court, the State filed a motion to remand the case because the record had been "mistakenly forwarded ... without the entire transcript." Brienza objected to the State's request because it failed to seek an extension of the 30-day period within which to file the transcript and had already caused an unreasonable delay of the proceedings,³ and, then moved for dismissal of the State's appeal on those grounds.⁴

In response, this Court denied Brienza's motion because we lack the authority to dismiss an appeal on the basis of a delayed filing of a transcript,⁵ and in doing so cited Court of Appeals Rule 20, which provides:

Appellee shall be deemed to have waived any failure of the appellant to comply with the provisions of the Appellate Practice Act relating to the filing of the transcript of the evidence and proceedings or transmittal of the record to this Court, unless objection thereto was made and ruled upon in the trial court before transmittal and the trial court's order is appealed as provided by law.

We did, however, grant the State's motion to remand the case for completion of the entire record.

Upon return of the case to the trial court, Brienza immediately moved to dismiss the State's appeal, filing the same motion as before. The court conducted a hearing,⁶ and then denied the motion, finding that the facts did not warrant dismissal. It is this decision Brienza cross-appeals, arguing that the State's appeal should have been dismissed upon remand due to its failure to timely order and file a complete transcript prior to the direct appeal's first appearance before this Court. We agree.

OCGA § 5-6-42 provides that when "there is a transcript of evidence and proceedings to be included in the record on appeal, the appellant shall cause the transcript to be prepared and filed ... within 30 days after filing of the notice of appeal ...." And the trial court "may, after notice and opportunity for hearing, order that the appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party."⁷ It is well established that a delay of more than 30 days is "prima facie unreasonable and inexcusable, but this presumption is subject to rebuttal if the party comes forward with evidence to show that the delay was neither unreasonable nor inexcusable."⁸

When considering a motion to dismiss on grounds of a failure to timely file the transcript, the trial court must "determine the length of the delay, the reasons for the delay, whether the appealing party caused the delay, and whether the delay was inexcusable, and then ... exercise discretion in deciding whether to dismiss the appeal."⁹ And we will only reverse a trial court's ruling on such a motion if the court abused its discretion.¹⁰

Here, the trial court explained that it considered "[the] length of [the] delay, whether the appellant requested an extension, the existence of negligence on the part of the appealing party, and whether such delay reasonably should have been detected and timely corrected." In evaluating these considerations, the court made sufficient findings of fact to demonstrate that it considered the relevant factors delineated in OCGA § 5-6-48 (c) —i.e. , the length of the delay, the reasons for the delay, whether the appealing party caused the delay, and whether the delay was inexcusable.¹¹ Additionally, when issuing its order, the trial court at times confused the terms "unreasonable" and "inexcusable," seemingly referring to one when it intended to refer to the other.¹² But despite this confusion in terms, the court's conclusion and factors it considered in reaching that conclusion remain the same.¹³ Nevertheless, we will use the proper terms when describing and assessing the trial court's analysis.

Before proceeding further, we also note that Brienza did not include the transcript of the trial court's hearing on the motion to dismiss with his cross-appeal, and we assume in such instances that the transcript supports the court's findings of fact.¹⁴ Our review, therefore, is limited to "determining if, based on the facts it found, the trial court abused its discretion[.]"¹⁵ But even under that limited review, we conclude that the trial court's findings of fact do not support its conclusions of law that the State's delay was neither unreasonable nor inexcusable. Therefore, the trial court erred in failing to dismiss the State's appeal.¹⁶

The trial court concluded that the delay in filing the transcript was in excess of 30 days. Specifically, the court found that 84 days passed between the time the State filed its notice of appeal on April 21, 2017, and when it requested the entire transcript on July 12, 2017. And the court correctly acknowledged that a delay in excess of 30 days is prima facie unreasonable and inexcusable. Nevertheless, the court concluded that the length of the delay in this case was not "unreasonable" due to "the [c]ourt's heavy caseload," citing its calendar between the filing of the notice of the appeal and when the State ordered the entire transcript. The court explained that, during the relevant time period, 39 days of court were held with four weeks of civil and criminal trials, 12 criminal arraignment days, seven days of criminal and civil hearings, and two days of criminal bench trials. And this was the court's sole reason for declining to find the length of the State's delay "unreasonable." But regardless of whether the court intended this finding to support a conclusion that the delay was not "unreasonable," or whether it made this finding to support its separate and later conclusion that the delay was not "inexcusable,"¹⁷ it supported neither conclusion. Indeed, the court's heavy caseload bears no relation to the State's ability—and its duty—to request the appropriate transcript for its appeal and then monitor the progress of that transcript's preparation.¹⁸

Furthermore, with regard to the reasons and cause for the delay, although the trial court noted that the State requested "some of the transcript" or "a portion of the transcript" within two days of filing its notice of appeal,¹⁹ it also found that the State (1) made no request for an extension, (2) was at least "slight[ly]" negligent (though the court did not explain why it concluded the negligence was "slight"), and (3) presented no evidence of any effort to follow up on its requested "portion" of the transcript and, thus, the "delay should have been corrected." The court further noted that the originally requested "portion" of the transcript was eventually filed in the trial court on July 28, 2017, only after the State's July 12, 2017 request for the entire transcript. And the filing of the initially requested "portion" resulted in the incomplete transmission to this Court and our subsequent remand at the State's request.

The trial court's findings of fact do not support its conclusion that the State's delay was not inexcusable, particularly in light of the State's burden to come forward with evidence to rebut the presumption that the delay was inexcusable when it far exceeded 30 days.²⁰ Instead, these findings show the State was responsible for the delay by failing to request an extension, was negligent, and made no efforts to check on the progress of the portion of the transcript it requested, which was not even the appropriate transcript necessary for the State's appeal, as evinced by the fact that the State later requested both preparation of the entire transcript and that this Court...