Zachery v. State

Ruffin, Judge.

A jury found Robert Zachery guilty of six counts of robbery. On June 12, 1997, the trial court denied Zachery’s motion for new trial. On June 25, 1997, Zachery, through counsel, timely filed a notice of appeal which merely states: “THE DEFENDANT, ROBERT ZACHERY, hereby files his Notice of Appeal to the Georgia Court of Appeals pursuant to 5-6-38, O.C.G.A.” For reasons which follow, we find that Zachery’s notice of appeal is insufficient to invoke the jurisdiction of this Court and therefore dismiss the appeal.

“It is the duty of this Court to raise the question of its jurisdic*520tion in all cases in which there may be any doubt as to the existence of such jurisdiction. The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” (Citations and punctuation omitted.) Coles v. State, 223 Ga. App. 491, 492 (2) (477 SE2d 897) (1996). The required contents of a notice of appeal are stated in OCGA § 5-6-37: “The notice shall set forth the title and docket number of the case; the name of the appellant and the name and address of his attorney; a concise statement of the judgment, ruling, or order entitling the appellant to take an appeal; the court appealed to; a designation of those portions of the record to be omitted from the record on appeal; a concise statement as to why the appellate court appealed to has jurisdiction rather than the other appellate court; ... if the appeal is from a judgment of conviction in a criminal case, a brief statement of the offense and the punishment prescribed[; and] . . . whether or not any transcript of evidence and proceedings is to be transmitted as part of the record on appeal.”

Though it is clear under OCGA § 5-6-37 that this information is required, the statute prohibits dismissal of an appeal “because of failure to include the jurisdictional statement or because of a designation of the wrong appellate court.” Similarly, OCGA § 5-6-48 (f) provides that “[w]here it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.” (Emphasis supplied.)

The foregoing emphasized language of OCGA § 5-6-48 (f) was construed by our Supreme Court in Ballew v. State, 225 Ga. 547 (170 SE2d 242) (1969). In Ballew, the notice of appeal provided: “ ‘Now comes (the appellant) and files this his appeal to the Supreme Court of Georgia.’ ” Id. at 547. The Court found that “[n]owhere does the notice set forth ‘a concise statement of the judgment, ruling or order entitling the appellant to take an appeal.’ Nor does it contain ‘a brief statement of the offense and the punishment prescribed,’ as required in criminal cases.” Id. at 547. Because the notice did not satisfy the requirements of the Appellate Practice Act, the Court dismissed the appeal. Id. As for the language of OCGA § 5-6-48 (f), the Court held that “[t]he situation here is not one provided for in [the statute], where the notice of appeal fails ‘to specify definitely the judgment.’ Rather, it is a situation where the notice of appeal fails to specify any judgment whatever. [Cit.]” (Emphasis in original.) Id. at 548 (decided under former Code Ann. § 6-809 (d)).

*521Fifteen years after the Supreme Court’s decision in Ballew, this Court addressed the same issue in Blackwell v. Cantrell, 169 Ga. App. 795 (1) (315 SE2d 29) (1984), but reached a different result. In Blackwell, the notice of appeal complied with OCGA § 5-6-37 in all respects except that it did not specify the order or judgment from which the appeal was taken. Though we cited the Supreme Court’s decision in Ballew for the proposition that the failure to designate an appealable judgment “constitutes a fatal defect requiring the dismissal of the appeal[,]” we nevertheless concluded that it was an amendable defect. Id. at 795, 796.

It is not necessary for us to explore whether Ballew is still viable authority for the proposition that an appellant’s failure to designate an appealable judgment is a fatal deficiency in the notice of appeal; the Supreme Court has already reached this conclusion in Brumby v. State, 264 Ga. 215, 217 (2) (443 SE2d 613) (1994). The Court in Brumby, citing Ballew, reiterated that OCGA § 5-6-48 (f) “would save [an appellant’s] appeal if the notice had merely failed to specify the judgment definitely, as opposed to failing ‘to specify any judgment whateverf.]’ [Cit.]” (Emphasis in original.) Id. at 217. Accordingly, “as long as the judgment is adequately specified, a failure to state the offense and punishment prescribed is not grounds for dismissal.” Id.

Zachery’s notice of appeal in this case is identical in all material respects to the notice of appeal that was at issue in Ballew. Inasmuch as the notice fails to specify any judgment whatever, OCGA § 5-6-48 (f) does not apply, and the appeal must be dismissed. See id.; Ballew, supra; Ray v. Maxwell, 198 Ga. App. 849 (403 SE2d 442) (1991).

Although the dissent acknowledges that the letter of the law requires this result, it nevertheless concludes that we should disregard such requirement to reach the merits of the case. Such conclusion, however, undermines the clear constitutional mandate that “[t]he decisions of the Supreme Court shall bind all other courts as precedents.” Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI. This mandate is not contingent, and the Court of Appeals is not at liberty to modify Supreme Court precedent merely because that precedent would, as the dissent contends, make “more work for this Court as well as for the trial court. . ., the parties, counsel, and custodians of defendant.” See Adams v. State, 174 Ga. App. 558, 559 (2) (331 SE2d 29) (1985). For the same reason, Blackwell, supra, does not permit a different result. Though Blackwell held that this was an amendable defect, we are compelled by the Constitution to abide by the Supreme Court’s precedent in Ballew and Brumby. Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI; Adams, supra. In sum, neither Ballew nor Brumby permits the judicial shortcuts to jurisdiction proposed by the dissent.

However, notwithstanding the requirement that we dismiss this appeal because appointed counsel failed to follow appellate procedu*522ral prerequisites, “[a] criminal defendant who has lost his right to appellate review of his conviction due to error of counsel is entitled to an out-of-time appeal. [Cits.]” Rowland v. State, 264 Ga. 872, 875 (2) (452 SE2d 756) (1995). And, “[w]hile 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.” (Emphasis in original.) Reese v. State, 216 Ga. App. 773, 774 (456 SE2d 271) (1995).

Accordingly, Zachery is advised: Your appeal has been DISMISSED because your attorney failed to file a proper notice of appeal. 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 have the right to appeal that denial to this Court within thirty (30) days of the trial court’s decision. See Reese, supra at 775.

The Clerk is directed to send a copy of this opinion to Zachery and to Zachery’s appellate counsel with direction that she also send a copy of the opinion to Zachery.

Appeal dismissed.

Andrews, C. J., McMurray, R J., Blackburn and Eldridge, JJ, concur. Pope, P. J., and Beasley, J., dissent.