Allen v. State

Beasley, Judge,

dissenting.

This case requires dismissal. On February 3 this Court, without another extension of time having been sought by appellant and after the original extension was granted, sua sponte further extended the time for filing. It “ordered that appellant file an enumeration of errors and brief within five days hereof, failing which the appeal may be dismissed without further notice.”

No enumeration of errors or brief has been filed. The appeal must be dismissed in that it has been abandoned. There is nothing to review.

The Court has itself pursued the appeal and has fashioned an enumeration of error raising the general grounds and ruled on it. Such action is not required. It runs counter to this Court’s function to review errors enumerated by the appellant. The Court applied the principle in Price v. State, 187 Ga. App. 239, 240 (370 SE2d 6) (1988), which was appellant’s second appeal. In reviewing the record of appellant’s first appeal, the Court found “that he did not properly invoke appellate jurisdiction as to the issue of the sufficiency of the evidence to authorize his convictions. The only issue that appellant raised was with regard to the weight of the evidence. Accordingly, not only was this court not required to give consideration to the sufficiency of the evidence on appellant’s first appeal, it was without authority to do so. [Cit.]”

Even in appeals which are pursued, the Court will not consider alleged errors argued but not enumerated, Hibbert v. State, 146 Ga. App. 887, 888 (3) (247 SE2d 554) (1978), or errors enlarged in the brief, Tucker v. State, 173 Ga. App. 742, 745 (3) (327 SE2d 852) (1985), or errors argued for the first time in a supplemental brief, McCormick v. State, 163 Ga. App. 267 (293 SE2d 35) (1982), or errors not properly raised in the trial court, Payne v. State, 171 Ga. App. 150 (1) (318 SE2d 826) (1984), Bateman v. State, 186 Ga. App. 21, 22 (366 SE2d 372) (1988), or errors enumerated but not argued, Quick v. State, 166 Ga. App. 492, 493 (1) (304 SE2d 916) (1983).

I am authorized to state that Presiding Judge Banke joins in this dissent.

*323Decided July 14, 1989. Charles H. S. Lyons III, for appellant. Sam B. Sibley, Jr., District Attorney, for appellee.