Lee v. State

Beasley, Judge,

dissenting.

I respectfully dissent. I do not concur in Division 1 because I discern nothing in Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985), which obligates this court to use the procedure it has followed. Yet it is the understanding of Evitts which the majority of this court has, which is the genesis and catalyst for the change in our Rule 14. See DeBroux v. State, 176 Ga. App. 81 (335 SE2d 170) (1985). Rule 14 authorizes and does not prohibit the dismissal of criminal appeals. Conyers v. State, 183 Ga. App. 591 (359 SE2d 454) (1987), and Allen v. State, 192 Ga. App. 320 (385 SE2d 29) (1989), are both bottomed on the interpretation of Evitts.

These four appeals, brought by ten defendants, emanate from convictions following jury trials on three consecutive days in April 1990, and sentences which were modified post-appeal so as to result in fines and statutory penalties and 12-month sentences suspended on conditions which included payment of the fines. The defendants were convicted of criminal trespass, OCGA § 16-7-21, and Chris Keys was also convicted of refusal to comply with a lawful order, OCGA § 40-6-2. All except Benson were involved in incidents occurring on December 21, 1989, and January 3, 1990. Benson participated in the one in January.

After notices of appeal were filed (with certificates of service signed by someone designated as “next friend”), defendants sought trial transcripts and record preparation at county expense. The motions were granted after “the Court conducted extensive hearings.” Transcripts and records were duly prepared, and the appeals were docketed in this court on September 5, 1991.

No action was taken by any of these defendants to perfect their appeals.

After the time for filing enumerations of error and briefs had passed, orders were entered under Rules 14 (a), 23 and 27 (b) extending the time and defendants were expressly warned that failure to comply “may result in dismissal of the appeal[s] and may subject the offenders] to contempt.” The orders were sent to the respective addresses of defendants in Georgia, California, North Carolina, and New York.

The extensions were sua sponte except in the appeal of Joseph Wright, Kim Wright, and Domingo. Domingo alone moved for an extension on September 25 based on the claim that he had not received the transcript. Although the transcript in their case had been filed in *490the trial court on August 30, 1991, this court granted an extension. The times for filing have expired months ago, and no enumerations of error, briefs, or word has been received from any of the defendants.

Even when enumerations of error are filed, if they are “not supported by argument, reference to the transcript, or citation of authority,” they are deemed abandoned. Grier v. State, 198 Ga. App. 840, 842 (2) (403 SE2d 857) (1991). See also, e.g., Whatley v. State, 197 Ga. App. 489 (2) (398 SE2d 807) (1990); Moss v. State, 196 Ga. App. 81, 84 (5) (395 SE2d 363) (1990) (pro se appeal); Burns v. State, 196 Ga. App. 732, 733 (397 SE2d 19) (1990); Mitchell v. State, 195 Ga. App. 255, 257 (fn. 1) (393 SE2d 274) (1990); Saunders v. State, 195 Ga. App. 810, 811 (2) (395 SE2d 53) (1990). Not only are there not any arguments or citations of authority giving reasons why a certain trial court ruling is enumerated as error, we do not even have any enumerations of error. “ ‘[T]his court is without jurisdiction to consider [what is not enumerated as error].’ ” Tandy Corp. v. McCrimmon, 183 Ga. App. 744, 747 (3) (360 SE2d 70) (1987), quoting from Riggins v. State, 128 Ga. App. 478 (197 SE2d 154) (1973).

It is a long established and firm rule that, as repeated in Taylor v. State, 197 Ga. App. 678, 680 (2) (399 SE2d 213) (1990), “[t]he burden is on the party alleging error to show it affirmatively by the record, and that when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed.” (Citation and punctuation omitted.) Here the defendants have not even alleged error.

Defendants are not entitled to have their convictions reviewed as a matter of right by an appellate court in this State, nor under the Federal Constitution. Thomas v. State, 260 Ga. 262, 263 (392 SE2d 520) (1990). By their conduct and their inaction, they have failed to pursue their appeals and they must be dismissed because they have been abandoned and because we have no jurisdiction in the absence of enumerations of error as required by OCGA § 5-6-40.

Allen v. State, supra; Conyers v. State, supra; DeBroux v. State, supra; and any other like decisions should be overruled. There are no “merits of the case” to decide.

That being so, I do not reach the issues decided in Divisions 2 and 3.