Styles v. State

537 S.E.2d 377, 245 Ga. App. 90, 2000 Fulton County D. Rep. 3249, 2000 Ga. App. LEXIS 909

• Court: Court of Appeals of Georgia
• Decided: July 13, 2000
• Docket: A00A0505
• Status: Published

Opinions

Smith, Presiding Judge.

We granted this discretionary application to resolve conflicting lines of opinion regarding this court’s jurisdiction over pending appeals before issuance of a remittitur. The Supreme Court of this state has expressly held that a superior court is without authority to alter a judgment while an appeal of that judgment is pending. Chambers v. State, 262 Ga. 200 (415 SE2d 643) (1992). This court has applied that rule even when the pending appeal is dismissed for lack of jurisdiction. We therefore dismiss this appeal and overrule the decisions of Gillis v. Goodgame, 199 Ga. App. 413 (404 SE2d 815) (1991), rev’d on other grounds, 262 Ga. 117 (414 SE2d 197) (1992), and Kent v. Brown, 238 Ga. App. 607 (518 SE2d 737) (1999), holding to the contrary.

On June 30, 1999, the superior court revoked Curtis Alton Styles’s probation. Styles filed a notice of appeal on July 28, 1999, and the direct appeal was docketed as Case No. A99A2476. An order dismissing Case No. A99A2476 for failure to comply with the discretionary appeal procedures was filed on August 13, 1999, but the remittitur was not issued by this court until September 3, 1999; it was filed in the superior court clerk’s office on September 7, 1999.

Under ordinary circumstances, a trial court does not have “jurisdiction to take any action in a case prior to receiving the remittitur from the appellate court.” Chambers, supra. But on August 20 and 24, 1999, before the remittitur issued, the superior court entered orders vacating and reentering the probation revocation order. As of those dates, the direct appeal was still pending and the superior court was without authority to alter the judgment on appeal. The superior court orders of August 20 and 24, 1999, therefore are null and void. Id. This is true even if the first appeal ultimately is dismissed for lack of jurisdiction. Anaya v. Brooks Auto Parts, 208 Ga. App. 491, 493 (1) (430 SE2d 825) (1993); see also Bryan v. Brown Childs Realty Co., 236 Ga. App. 739, 742 (2) (513 SE2d 271) (1999); Morris v. Morris, 226 Ga. App. 799 (2) (487 SE2d 528) (1997); MTW Investment Co. v. Alcovy Properties, 223 Ga. App. 230, 231 (477 SE2d 395) (1996).

A different result would be reached under the holdings of Gillis v. Goodgame, supra at 414 (1), and Kent v. Brown, supra at 613-614 (3). These cases hold that when an appeal is dismissed due to this court’s lack of jurisdiction, the trial court is deemed to have retained jurisdiction during the pendency of the appeal and could properly have proceeded with the case, including altering or amending the judgment or ruling sought to be appealed. The effect of these cases is to remove from this court the responsibility for determining our own jurisdiction. Williams v. Natalie Townhouses &c., 182 Ga. App. 815, 817 (357 SE2d 156) (1987). Rather than abdicate our authority to determine our jurisdiction over pending appeals, we overrule and will no longer follow Gillis or Kent with respect to this issue.

Applications for discretionary appeal must be filed within 30 days of entry of the order complained of. OCGA § 5-6-35 (d). Styles’s application was not filed within 30 days of the entry of the June 30, 1999 order revoking probation, which remains in effect due to the void nature of the order purporting to vacate it. This court lacks jurisdiction to consider an untimely application for discretionary appeal. Rosenstein v. Jenkins, 166 Ga. App. 385 (304 SE2d 740) (1983). This application therefore is dismissed.

Appeal dismissed.

Johnson, C. J., Pope, P. J., Andrews, P. J., Ruffin, Barnes, Miller and Phipps, JJ., concur. Blackburn, P. J, Eldridge, Ellington and Mikell, JJ, concur specially.