Whittle v. State

• Decision Date: 10 November 1993
• Docket Number: No. A93A1401,A93A1401
• Citation: 210 Ga.App. 841,437 S.E.2d 842
• Parties: WHITTLE v. The STATE.
• Court: Georgia Court of Appeals

Page 842

437 S.E.2d 842

210 Ga.App. 841

WHITTLE v. The STATE.

No. A93A1401.

Court of Appeals of Georgia.

Nov. 10, 1993.

Henry J. Whittle, Jr., pro se.

S. Dabney Yarbrough, for appellee.

JOHNSON, Judge.

Henry J. Whittle, Jr., pleaded guilty to a misdemeanor speeding charge and was ordered to pay a fine. He timely filed a pro se notice of appeal. The notice alleges that the trial court erred in refusing to accept Whittle's proffer of a nolo contendere plea. The appeal was docketed in this court on March 31, 1993. No enumeration of error or brief was filed within 20 days after docketing, but this court granted an extension for filing until April 30, 1993 upon Whittle's motion. Then, on May 10, we denied Whittle's second motion for a further extension which he requested due to an unspecified "family emergency." Nevertheless, on May 24, 1993, this court entered a final order extending the time for filing enumerations of error and a brief until June 1, 1993 and warned Whittle that failure to comply "may" result in the dismissal of his appeal. These exceptional procedures are routinely followed in criminal cases. Whittle failed to file enumerations of error or a brief in accordance with the terms of the May 24th order. The entire record in the case consists of the notice of appeal, the traffic citation upon which the guilty plea was entered and an executed waiver of jury form.

Despite the paucity of the record, we could, as we have in the past, make every effort to render a decision in the case. We decline to do so, however, and instead take this opportunity to reexamine the rule stated in Lee v. State, 203 Ga.App. 487, 488(1), 417 S.E.2d 426 (1992): "[O]nce this court's jurisdiction has been invoked by a timely filed notice of appeal from a criminal conviction, we will not dismiss for the subsequent failure to comply with the rules of this court, but will make every effort to render a decision on the merits of the case." See also Sarver v. State, 206 Ga.App. 459, 426 S.E.2d 48 (1992).

The purpose of the rule, to possibly avoid a later habeas corpus challenge based on insufficiency of evidence, is laudatory. Nonetheless, we have two concerns about the rule, both of which have been suggested in previous dissents. First, we believe it is inconsistent and fundamentally unfair for us to follow Court of Appeals Rule 15(c)(2) in some cases and deem abandoned any enumeration of error which is not supported by citation of authority or argument, and yet in other cases provide enumerations of error which have not even been articulated, and support them with authority. This practice works to the disadvantage of the appellant who attempts to make his own case and is penalized for being unfamiliar with the rules of this court, and rewards the nonfeasance of the appellant who does nothing at all with having this court comb the record for error on his behalf. See Lee v. State, supra.

Our second concern is that "creating" an appeal for the appellant who has failed to file enumerations of error or a brief casts this court into the role of advocate. The awkwardness and inappropriateness of this role has been suggested by Judge Beasley in her dissent in Conyers v. State, 183 Ga.App. 591, 359 S.E.2d 454 (1987), and again in Sarver, supra. ¹

Whittle elected to undertake his own appeal, therefore neither the spirit nor the letter of Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), is violated by our actions in declining to consider his appeal. ² We hold that 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. Our decisions in Sarver v. State, supra; Lee v. State, supra; Conyers v. State, supra; DeBroux v. State, supra; and Allen v. State, supra; are expressly overruled to the extent they conflict with this holding.

Appeal dismissed.

BIRDSONG and BEASLEY, P.JJ., and ANDREWS and SMITH, JJ., concur.

POPE, C.J., McMURRAY, P.J., and COOPER and BLACKBURN, JJ., dissent.

POPE, Chief Judge, dissenting.

For a number of years, it has been the policy of this court to decide criminal appeals on the merits, even if the defendant fails to file a brief and enumerations of error. See. e.g., Sarver v. State, 206 Ga.App. 459, 426 S.E.2d 48 (1992). This policy does not require us to "comb" the record for errors as an advocate would, as suggested by Presiding Judge Beasley in her dissent in Conyers v. State, 183 Ga.App. 591, 592-593, 359 S.E.2d 454 (1987) and her special concurrence in Sarver, 206 Ga.App. at 460-461, 426 S.E.2d 48. Rather, it requires a brief review of the record to ensure that no clear and grave injustice has occurred. In at least nine out of ten cases, this review will result in a summary affirmance of the conviction. But in a small minority of cases, there will be a fairly obvious error requiring reversal of a conviction. See Sarver, 206 Ga.App. at 459, 426 S.E.2d 48. This practice does not unfairly work to the disadvantage of appellants who do file enumerations of error and are limited to those enumerations; while we have all refused to decide issues not enumerated as error from time to time, I am confident that none of us do so when it would result in the affirmance of a clearly incorrect and unjust judgment. And it is those types of judgments this policy was meant to address.

Perhaps it is time to reconsider our position that criminal appeals should always be decided on the merits, regardless of whether a brief and enumerations of error have...