Whittle v. State

437 S.E.2d 842, 210 Ga. App. 841, 93 Fulton County D. Rep. 4052, 1993 Ga. App. LEXIS 1376

• Court: Court of Appeals of Georgia
• Decided: November 10, 1993
• Docket: A93A1401
• Status: Published

Opinions

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 24 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 SE2d 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 SE2d 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 nonfeasánce 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 SE2d 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 SC 830, 83 LE2d 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, P. J., Beasley, P. J., Andrews and Smith, JJ., concur. Pope, C. J., McMurray, P. J., Cooper and Blackburn, JJ., dissent.

1 Other misgivings about the wisdom of the practice of “providing” an appeal in these circumstances have been articulated in dissents in Allen v. State, 192 Ga. App. 320 (385 SE2d 29) (1989); Golden v. State, 190 Ga. App. 477 (379 SE2d 230) (1989); Conyers v. State, supra; and DeBroux v. State, 176 Ga. App. 81 (335 SE2d 170) (1985).

2 For an excellent discussion of the obligations created under Evitts v. Lucey, supra, see Judge Andrews’ dissent in Lee, supra, 203 Ga. App. 490 et seq.