Dalton v. State

Court of Appeals of Georgia

Dalton v. State

615 S.E.2d 202, 273 Ga. App. 404, 2005 Fulton County D. Rep. 1676, 2005 Ga. App. LEXIS 515

CourtCourt of Appeals of Georgia

DecidedMay 23, 2005

DocketA05A0837

StatusPublished

Cited by2 cases

This text of 615 S.E.2d 202 (Dalton v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dalton v. State, 615 S.E.2d 202, 273 Ga. App. 404, 2005 Fulton County D. Rep. 1676, 2005 Ga. App. LEXIS 515 (Ga. Ct. App. 2005).

Pincite

Opinion

JOHNSON, Presiding Judge.

In July 1996, James Dalton was tried before a jury and convicted of two counts of armed robbery, two counts of aggravated assault, two counts of possession of a firearm during the commission of a felony and one count of possession of a sawed-off shotgun. Dalton directly appealed from the denial of his motion for a new trial, and in February 1999, this court affirmed Dalton’s conviction.¹

More than five years later, on November 1, 2004, Dalton filed in the trial court a pro se “Motion to Vacate Illegal Conviction and [405]*405Sentence,” claiming that his pre-trial extradition to Georgia from Tennessee had been improper, that the weapons offenses should have merged with the armed robbery and aggravated assault offenses, and that there should not have been a single trial because the crimes arose out of two separate incidents. The trial court denied the motion. Dalton filed this direct appeal from the denial of his motion to vacate.

Decided May 23, 2005. James R. Dalton, pro se. Kermit N. McManus, District Attorney, for appellee.

A criminal defendant’s conviction which has been affirmed on direct appeal may be reviewed again by the filing of an extraordinary motion for new trial or a petition for writ of habeas corpus. With regard to either of those pleadings, appellate review is not gained by filing a direct appeal, but must be sought by means of an application for review.²

In the instant case, the 2004 motion filed by Dalton cannot be considered a petition for a writ of habeas corpus because it was filed in the county of Dalton’s conviction rather than against the warden in the county where he is incarcerated.³ To the extent the motion can be considered an extraordinary motion for a new trial, Dalton has failed to file an application for discretionary appeal from the denial of that motion.⁴ In effect, Dalton seeks a second direct appeal by means of his motion which contains issues he could have raised in his original direct appeal, and he is not entitled to a second direct appeal from the judgment of conviction.⁵ Because Dalton has filed an improper direct appeal, we have no jurisdiction and the appeal must be dismissed.⁶

Appeal dismissed.

Ruffin, C. J., and Barnes, J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

JOHNSON, Presiding Judge.

In July 1996, James Dalton was tried before a jury and convicted of two counts of armed robbery, two counts of aggravated assault, two counts of possession of a firearm during the commission of a felony and one count of possession of a sawed-off shotgun. Dalton directly appealed from the denial of his motion for a new trial, and in February 1999, this court affirmed Dalton’s conviction.¹

More than five years later, on November 1, 2004, Dalton filed in the trial court a pro se “Motion to Vacate Illegal Conviction and [405]*405Sentence,” claiming that his pre-trial extradition to Georgia from Tennessee had been improper, that the weapons offenses should have merged with the armed robbery and aggravated assault offenses, and that there should not have been a single trial because the crimes arose out of two separate incidents. The trial court denied the motion. Dalton filed this direct appeal from the denial of his motion to vacate.

Decided May 23, 2005. James R. Dalton, pro se. Kermit N. McManus, District Attorney, for appellee.

A criminal defendant’s conviction which has been affirmed on direct appeal may be reviewed again by the filing of an extraordinary motion for new trial or a petition for writ of habeas corpus. With regard to either of those pleadings, appellate review is not gained by filing a direct appeal, but must be sought by means of an application for review.²

In the instant case, the 2004 motion filed by Dalton cannot be considered a petition for a writ of habeas corpus because it was filed in the county of Dalton’s conviction rather than against the warden in the county where he is incarcerated.³ To the extent the motion can be considered an extraordinary motion for a new trial, Dalton has failed to file an application for discretionary appeal from the denial of that motion.⁴ In effect, Dalton seeks a second direct appeal by means of his motion which contains issues he could have raised in his original direct appeal, and he is not entitled to a second direct appeal from the judgment of conviction.⁵ Because Dalton has filed an improper direct appeal, we have no jurisdiction and the appeal must be dismissed.⁶

Appeal dismissed.

Ruffin, C. J., and Barnes, J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

615 S.E.2d 202, 273 Ga. App. 404, 2005 Fulton County D. Rep. 1676, 2005 Ga. App. LEXIS 515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dalton-v-state-gactapp-2005.

Opinion

Related

Cite This Page — Counsel Stack