concurring in part and dissenting in part.
I agree that pursuant to the procedure set forth in Rowland v. State, 264 Ga. 872 (452 SE2d 756) the appeals in the cases sub judice should be dismissed. However, additionally, I must dissent as I do not agree that a compelling necessity exists for the overruling of the whole court case of Mitchell v. State, 214 Ga. App. 69 (447 SE2d *776140), as the mandate of the Supreme Court of Georgia in Rowland v. State, supra, supersedes all other means, employed by the Court of Appeals of Georgia, of dealing with “represented” defendants in criminal cases where there has been a failure to file enumerations of error and brief after having been ordered to do so by this court. Moreover, I feel that the majority’s criticism of Mitchell v. State, supra, is unwarranted in view of this court’s good faith efforts to remedy a disturbing problem as discussed hereinafter in this dissent.
For the greater part of two decades this court has had to face the vexatious dilemma of which course to be taken to expeditiously handle the appeal of a represented defendant in a criminal case, after docketing in this court, whose counsel appears to abandon the defendant before the filing of an enumeration of errors and brief and after being ordered to do so by this court. In the early stages of an appeal, in a criminal case, this court has no means of knowing why counsel, either through act of God or otherwise, has failed to file an enumeration of errors and brief.
This court has no authority to appoint counsel for a defendant in a criminal case, that authority is reposed in the trial court upon a proper showing.
The genesis of Mitchell v. State, supra, was not brought about in a desire to overload the trial courts or to show preferential consideration to some appellants over others, but to do justice where the trusting defendant, represented by counsel, was left beached, high and dry. Alas, left to flounder in disorientation and in disbelief.
A careful scrutiny of Mitchell v. State, supra, will disclose that it actually authorized a procedure to be followed in ascertaining whether appellate counsel in a criminal case should be held in contempt of this court for failure to obey this court’s order as well as fulfill the professional responsibility of representing the client. Moreover, the facilitation and expeditious determination of the merits of an appeal in a criminal case is the ultimate purpose and this cannot be accomplished in the absence of an enumeration of errors and brief on behalf of the appealing defendant.
The form order to be utilized by this court, as directed in Mitchell v. State, supra, emanated from this court’s desire to adopt, in a published opinion, the similar direction given to the trial courts, under similar circumstances, by the Supreme Court of Georgia, in its orders issued in Favors v. State, S94A1234 (July 22, 1994); Wright v. State, S92A1504 (November 6, 1992); and Mobley v. State, S92A1116 (September 11, 1992).
I am concerned that the holding in the cases sub judice and the holding in Whittle v. State, 210 Ga. App. 841 (437 SE2d 842) may leave an unlevel playing field. So what about Whittle? In Whittle v. State, supra at 842, this court in a (5 to 4) whole court decision held *777“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.” Beyond the appeal being dismissed no further direction is given by this court under the authority of Whittle. All the “unrepresented” criminal defendant is told is “Appeal dismissed.”
Decided March 17, 1995. Wallace D. Washington, for Reese. Keith C. Martin, Solicitor, for State. Armed robbery, etc. Fulton Superior Court. Before Judge Gude (case no. A94A2751). Neville T. Francis, for Curtis. Lewis R. Slaton, District Attorney, for Fulton County.Why cannot the procedure outlined by the majority in the cases sub judice (represented criminal defendants) be utilized in those appeals involving the “unrepresented” criminal defendant who perhaps for one or more of a myriad of reasons either chose to represent himself or herself or did not understand that under certain conditions appellate counsel could be appointed?