holding sufficient proof of prior conviction based upon authenticated records “certified as a true and correct copy of the original ‘indictment, plea and sentence’ ”
How later courts described this case
- holding sufficient proof of prior conviction based upon authenticated records “certified as a true and correct copy of the original ‘indictment, plea and sentence’ ”
- concurred in fully as to Division 2
Written by the judges who cited it.
The opinion
*824 Beasley, Judge,
concurring specially.
I concur fully in Divisions 2, 3, and 4 but not in Division 1. This case illustrates the confusion regarding appeals in criminal cases where the simple mechanism of the form notice is not filed with the clerk within 30 days as provided by OCGA § 5-6-38 (a), and other attempts at appeal are made. The basis upon which this court has jurisdiction of this appeal is the defendant’s letter of May 5 to the trial judge.
At the conclusion of the sentencing, the trial court advised defendant in the presence of his appointed counsel that he had a right to appeal if he wished, with counsel to be appointed if defendant could not afford one. The court also advised defendant of the right to sentence review. Then the court stated: “Any appeal that you file or any request for sentence review must be filed within thirty days from today. Do you understand this time limitation?” Defendant responded that he did.
There is no explanation of why his trial counsel did not file an ordinary notice of appeal. It would be incumbent upon him to do so, after ascertaining defendant’s desires, rather than leave especially an incarcerated defendant stranded so that such defendant has to fashion and file a notice of appeal and seek the appointment of appellate counsel by himself. To leave such action to appellate counsel creates an impractical situation, for the prisoner would have to initiate a request for further counsel early within the thirty days in order to allow appointment of counsel and his subsequent filing of the notice.
The trial court apparently considered the prisoner’s letter as a notice of appeal because it filed it and appointed new counsel to represent him. It was the new counsel who about ten days after appointment filed a “Motion for Out of Time Appeal.” The court heard from new counsel and the state’s trial attorney. Neither defendant nor his trial attorney were present at the hearing, so it is unknown whether defendant even conveyed to his attorney that he wished to appeal. The court expressed that it did not know if it had discretion, but if it did, it granted the motion. From the court’s explanation, it appears that it did so because of the receipt of defendant’s letter within the time for filing a notice of appeal.
Defendant’s pro se notification to the court of his desire to appeal substantially fulfilled the requirements of a notice under OCGA § 5-6-37 in that the essentials were either set out or easily ascertainable and the deviations were excusable because it was filed by an incarcerated indigent defendant. Although there was no certificate of service, the state does not claim that it was harmed by the delay in its being informed of the appeal. Besides, a substantially complying notice may be amended, Blackwell v. Cantrell, 169 Ga. App. 795 (1) ( 315 SE2d 29 ) (1984), which office the notice later filed by new counsel served.
*825 Decided July 13, 1988.
Mary S. Feeney, Gloria D. Reed, for appellant.
Robert E. Keller, District Attorney, Debra Benefield, Assistant District Attorney, for appellee.
The defendant’s notification was filed with the clerk, who indexed it as a Notice of Appeal, one day late. This was attributable to an unexplained delay in the judge’s receipt of the letter six days after it was written from a nearby place of incarceration, which the trial judge considered material in determining timeliness, and to his having the notification one day before filing it. The judge may permit papers to be filed with him. OCGA § 9-11-5 (e); see Hannula v. Ramey, 177 Ga. App. 512, 513 (1) ( 339 SE2d 735 ) (1986). Although the judge did not note the date on the document, he established such in the record.
Since the notice clearly would have been timely had the judge written on it the date of filing or submitted it to the clerk for filing the same day as it was received, it should be regarded as timely within the circumstances of this case.