Whittle v. State

Pope, Chief Judge,

dissenting.

For a number of years, it has been the policy of this court to decide criminal appeals on the merits, even if the defendant fails to file a brief and enumerations of error. See, e.g., Sarver v. State, 206 Ga. App. 459 (426 SE2d 48) (1992). This policy does not require us to “comb” the record for errors as an advocate would, as suggested by Presiding Judge Beasley in her dissent in Conyers v. State, 183 Ga. App. 591, 592-593 (359 SE2d 454) (1987) and her special concurrence in Sarver, 206 Ga. App. at 460-461. Rather, it requires a brief review of the record to ensure that no clear and grave injustice has occurred. In at least nine out of ten cases, this review will result in a summary affirmance of the conviction. But in a small minority of cases, there will be a fairly obvious error requiring reversal of a conviction. See Sarver, 206 Ga. App. at 459. This practice does not unfairly work to the disadvantage of appellants who do file enumerations of error and are limited to those enumerations; while we have all refused to decide *843issues not enumerated as error from time to time, I am confident that none of us do so when it would result in the affirmance of a clearly incorrect and unjust judgment. And it is those types of judgments this policy was meant to address.

Decided November 10, 1993. Henry J. Whittle, Jr., pro se. S. Dabney Yarbrough, for appellee.

Perhaps it is time to reconsider our position that criminal appeals should always be decided on the merits, regardless of whether a brief and enumerations of error have been filed. However, the majority opinion goes beyond overruling our current policy: it actually holds that criminal appeals “will be dismissed” if a pro se defendant does not comply with an order to file a brief and enumeration of error, thereby denying us the discretion to address the merits of such appeals under any circumstances. For the reasons expressed above, I do not believe that a brief review of the record is either an improper or an unwarranted use of our time, and in some cases this practice enables us to rectify a clear and grave injustice. I therefore suggest that if our current practice is to be changed, the new policy should be that such appeals may rather than will be dismissed without review on the merits. See Court of Appeals Rule 14; see also Lee v. State, 203 Ga. App. 487, 493 (417 SE2d 426) (1992) (Andrews, J., dissenting).

In this case, a brief review of the record reveals no reversible error. I would therefore affirm the judgment below.

I am authorized to state that Judge Cooper and Judge Blackburn join in this dissent.