Reese v. State

456 S.E.2d 271, 216 Ga. App. 773, 95 Fulton County D. Rep. 1365, 1995 Ga. App. LEXIS 300

• Court: Court of Appeals of Georgia
• Decided: March 17, 1995
• Docket: A94A2601, A94A2751
• Status: Published

Opinions

Smith, Judge.

Jeannette Reese was convicted of obstruction of law enforcement officers, OCGA § 16-10-24. Demario Curtis was convicted of kidnapping, OCGA § 16-5-40, armed robbery, OCGA § 16-8-41, and aggravated assault, OCGA § 16-5-21. Because similar issues are raised, these two cases are consolidated on appeal.

Reese’s appeal was docketed in this court on August 15,1994. An extension of time in which to file enumerations of error and brief was denied on October 19, 1994. On October 27, 1994, Reese was directed by order of this court to file enumerations of error and brief no later than November 1, 1994. Curtis’s appeal was docketed in this court on September 6, 1994. On October 18, 1994, Curtis was directed by order of this court to file enumerations of error and brief no later than October 24, 1994. As of this date, appellants have failed either to file enumerations of error and brief or to communicate to this court in writing good and sufficient cause for failure to do so. Both appellants are represented by counsel on appeal.

Appellants have failed to file enumerations of error or a brief after having been ordered to do so, and their appeals are accordingly dismissed. In doing so, we are aware of Mitchell v. State, 214 Ga. App. 69 (447 SE2d 140) (1994). However, that decision inconsistently applies the law and rules of this court, places additional burdens on the trial court, and provides a superfluous procedure where remedies are already available. We believe Mitchell was wrongly decided and should be overruled, returning to an evenhanded application of Rule 26 and adopting the procedure outlined by the Georgia Supreme Court in Rowland v. State, 264 Ga. 872 (452 SE2d 756) (1995).

The remand for a hearing in Mitchell is provided only when an appellant is represented by counsel and fails to file any brief or enumeration of errors. As noted in Rowland, this practice creates significant inconsistencies in the enforcement of the rules of this court. Some appellants, but not others similarly situated, are excepted from the application of Rule 26 (a). Some appellants, but not others, receive an additional hearing. Appellants with an attorney who does nothing whatsoever are given greater latitude than those with an attorney who files an inadequate brief or fails to fulfill other requirements of the rules. Finally, Mitchell forces this court of review “to change its role from disinterested decision-maker to appellate advocate reviewing a trial record for error.” Rowland, supra at 874 (1).

If this dismissal were a final termination of appellants’ cases and no remedies were available to pursue their appeals, due process requirements would be implicated, and a procedure such as that outlined in Mitchell might be necessary. However, if counsel has abandoned these appeals without appellants’ knowledge, they have several avenues remaining for relief, including application for an out-of-time appeal. See Rowland, supra at (2); see also Mitchell, supra at 71-72 (Beasley, P. J., dissenting). Therefore, the appeals will be dismissed.

While an out-of-time appeal may afford a remedy, it can be a meaningful remedy only if the defendant is aware of his right to an out-of-time appeal and how to exercise it. Because Rowland directs that the dismissal order notify the defendant of his rights, the language of that order will be crucial. It is vital that it be written in language readily understandable to a nonlawyer.

Therefore, in accordance with the procedure outlined in Rowland, copies of these dismissals informing appellants of their right to an out-of-time appeal should be sent to appellants, as well as to counsel with the direction that counsel forward an additional copy to appellants. The orders of dismissal shall contain the following language: “Your appeal has been DISMISSED because your attorney failed to file a brief and enumeration of errors. If you have decided you do not want to appeal, you need not do anything more. However, if you do still want to appeal, you may have the right to an OUT-OF-TIME APPEAL — but YOU MUST TAKE ACTION to exercise that right by moving for an out-of-time appeal in the trial court. If your motion for an out-of-time appeal is granted, the trial court should appoint another attorney for you if you want one and cannot pay for one. If your motion for an out-of-time appeal is denied, you may appeal that denial to this court within thirty (30) days of the trial court’s decision.”

Appeals dismissed.

Beasley, C. J., Birdsong, P. J., Andrews, Johnson and Ruffin, JJ., concur. Pope, P. J., and Blackburn, J., concur specially. McMurray, P. J., concurs in part and dissents in part.