Odister v. State

Beasley, Judge,

dissenting.

This court is without jurisdiction to entertain criminal appeals filed when there is disregard of the jurisdictional prerequisite for a notice to be filed within thirty days of the judgment appealed from, no explanation for untimeliness, and permission for out-of-time appeal is granted without motion, hearing of record, or notice to the State.

Yet that is precisely what is happening here. Defendant was represented by the public defender at trial. At sentencing, the court carefully informed defendant that he had a right to sentence review by a panel of superior court judges, a right to appeal the conviction, and a right to move for a new trial, all with appointed counsel if desired. The court stated as to each avenue that it had to be pursued within thirty days.

Defense counsel stated in response to the State’s question as to whether he knew what defendant wanted to do: “I do not, your honor, but I anticipate an appeal. I would certainly anticipate it.” The court responded that if defendant was still unable to hire a lawyer, “Of course, I will appoint the public defender to represent him to enter an appeal to the Court of Appeals of Georgia.”

Counsel acknowledged this and the court added: “If that’s what he wants to do.” Counsel stated he would explain that to defendant. That was on May 3, 1988.

The thirty days went by and no motion for new trial or notice of *900appeal or motion for extension was filed. OCGA §§ 5-6-38; 5-6-39; 5-6-51.

Decided June 19, 1989. Michael H. Lane, for appellant. Lewis R. Slaton, District Attorney, Nancy A. Grace, A. Thomas Jones, Joseph J. Drolet, Assistant District Attorneys, for appellee.

Six months later, on November 10, the same counsel obtained an order permitting an out-of-time appeal and simultaneously filed a document entitled “Out-of-Time Notice of Appeal” plus defendant’s pauper affidavit. The affidavit was dated May 12, nearly three weeks before the thirty days had expired. No motion for out-of-time appeal was filed or served on the State. There was no hearing insofar as such can be discerned from the record.

The court stated in the order that good and sufficient reason was shown for the allowance. What it was is not shown. If fault lay with defendant, he is not entitled to such an appeal. Westberry v. State, 257 Ga. 617 (361 SE2d 826) (1987). Whether it was found that defendant was not responsible, and that defendant would otherwise lose a constitutional right, has not been established. If the court concluded that counsel was ineffective in failing to act on time, why is the same counsel appointed to represent defendant on appeal? In any event, the State had no opportunity to contest whether defendant was entitled to an out-of-time appeal. It, too, must be afforded due process of law. Otherwise the State’s interests as a party in achieving finality of criminal convictions in a timely and orderly manner, and in avoiding frivolous appeals and the unnecessary expenditure of resources, are not protected.

The case should be remanded with direction for a hearing on the implied motion for out-of-time appeal. Cannon v. State, 175 Ga. App. 741, 743 (334 SE2d 342) (1985). Compare Johnson v. State, 182 Ga. App. 477 (356 SE2d 101) (1987); Conway v. State, 183 Ga. App. 573 (359 SE2d 438) (1987); Jenkins v. State, 187 Ga. App. 608 (371 SE2d 132) (1988). See Shirley v. State, 188 Ga. App. 357, 358 (1) (373 SE2d 257) (1988). Failure to timely file a notice of appeal is ordinarily grounds for dismissal, OCGA § 5-6-48 (b) (1). When statutorily-prescribed jurisdictional requisites for appeal are to be overridden on constitutional grounds by the trial court, it must be made plain in the record. Cannon, supra, recognizes this. Otherwise this court cannot discharge its duty to determine its jurisdiction, which is the threshold question in every case.