Mingo v. State

210 S.E.2d 835, 133 Ga. App. 385, 1974 Ga. App. LEXIS 1079

• Court: Court of Appeals of Georgia
• Decided: October 31, 1974
• Docket: 49794
• Status: Published

Opinions

Stolz, Judge.

Michael Mingo was tried and convicted November 15, 1973 of the offense of selling heroin. His motion for new trial was overruled January 4,1974, on January 31 he filed a notice of appeal, and on March 1,1974, applied for an extension of time within which to file the transcript of the evidence. An order was entered granting an extension of 30 days.

On April 8, 1974, the state moved to dismiss the appeal on the ground that the transcript had not been filed and that no timely application had been made for an extension. A rule nisi was issued and a hearing set on the motion for April 19, 1974, but was continued until May 17, 1974, when, after hearing, the motion was granted and the appeal was dismissed by order of Hon. J. Alvan Davis, Judge of Muscogee Superior Court, wherein the matter pended.

From the order of dismissal this appeal was entered, and error is enumerated on the ground that the defendant had been denied the effective assistance of counsel in the perfection of his appeal. No transcript of the hearing held on the motion to dismiss has been sent up and we have nothing before us but the order. Held:

Under Code Ann. § 6-804 (Ga. L. 1965, pp. 18, 21) extensions of time for the filing of transcript of the evidence and proceedings on appeal, may be granted if made before the expiration of the period for filing as originally prescribed or as extended by a permissible previous order. See Fahrig v. Garrett, 224 Ga. 817 (165 ). It has been held that orders granting such extensions of time cannot be granted nunc pro tunc on a delayed application. Baxter v. Long, 122 Ga. App. 500 (177 SE2d 712).

The verbiage of the statute and the cases cited construing it, are clear and we would affirm the trial court in this case but for controlling authority from our Supreme Court. In McAuliffe v. Rutledge, 231 Ga. 745, 746 (204 SE2d 141), a habeas corpus case whose facts are compellingly similar to those before us, it was held: "Failure to perform this duty [timely filing the transcript] resulted in the dismissal of the appeal and the denial to appellant of a review of his conviction. The result to the appellant was the same as though the attorney had abandoned the appeal or otherwise failed in his role of advocate on appeal. An attorney who through negligence, ignorance, or misinterpretation of the law as contended here, fails to perform routine duties resulting in a dismissal of his client’s appeal, thereby denying such client a right of review after conviction [,] cannot be said to be rendering effective assistance. The result is the same as no assistance at all. Whether counsel was retained, as here, or appointed by the court, is immaterial.”

The effect of the holding in McAuliffe, supra, is to render impotent, time requirements in criminal procedures, both trial and appellate. It opens a Pandora’s box wherefrom, under various guises, calculated ineffectiveness can become the cornerstone of the defense in each criminal case. To say the least, another mile has been added to the judicial process, which was already a painfully long and difficult journey. The law is nothing more than the rules under which people live in an orderly society. In theory, at least, the law is equally applicable to all. Certain laws — rules of procedure — govern the way and manner in which cases are processed through the judicial system. These laws or procedures are essential to the orderly functioning of our courts. They too should apply to all. The Supreme Court and this court have uniformly applied them in civil cases. It now appears that there is a different set of rules for the accused in criminal cases — that is, no rule at all where timely action is required. This type of inconsistency undermines the basic credibility of the judicial system. To require timely action for the accused by his counsel does not deprive the accused of his constitutional rights. These rights are afforded throughout the judicial process. It is incumbent upon the accused or his counsel to exercise these rights within the time span required by our laws or thereby forfeit them. Would it seriously be argued that, if this had been an appeal by the state which had been dismissed for failure to timely file the transcript, the rights of the people of the state would have been protected in such a manner? We think not. We must recognize that generally all rights can be waived. Code § 102-106. This may be done by the accused where such is "done voluntarily, knowingly and intelligently.” Rose v. State, 128 Ga. App. 370, 371 (196 SE2d 683) and cits. It may be done by counsel for the accused by failure to act timely or not act at all. Our Constitution requires that all persons accused of criminal offenses be given a fair trial. It does not require a perfect trial. Ga. Power Co. v. Hendricks, 130 Ga. App. 733, 734 (4) (204 SE2d 465). Our courts have interpreted this constitutional right to extend to an appeal. Does McAuliffe, supra, mean that the convicted accused is entitled to a perfect appeal? or perfect timeliness by counsel in the processing of the appeal? It should not. The accused at trial and the convicted accused after trial, should be bound by the acts and omissions of their counsel as is the state, which represents the people generally. To rule otherwise, cannot help but be construed as giving preferential treatment to one group at the expense of another.

Submitted October 1, 1974 Decided October 31, 1974 Rehearing denied November 22, 1974

Nevertheless, under the mandate of McAuliffe v. Rutledge, supra, we must hold that the appellant was denied effective assistance of counsel in attempting to appeal his conviction. We reverse with direction that the transcript of the proceedings be allowed filed and that the appellant’s appeal be routinely processed thereafter.

Judgment reversed with direction.

Eberhardt, P. J., and Deen, J., concur. Grogan, Jones & Lay field, John C. Swearingen, Jr., for appellant. E. Mullins Whisnant, District Attorney, for appellee.