explaining that attempts to provide sua sponte appellate review of criminal appeals notwithstanding incomplete appellate filings may “foreclose future habeas review of assertions of error on the ground that review of the errors is procedurally defaulted since they could have been raised in the direct appeal”
How later courts described this case
- explaining that attempts to provide sua sponte appellate review of criminal appeals notwithstanding incomplete appellate filings may “foreclose future habeas review of assertions of error on the ground that review of the errors is procedurally defaulted since they could have been raised in the direct appeal”
- holding that where ineffective assistance of counsel — i.e., a violation of a defendant’s Sixth Amendment right to counsel — has deprived a defendant of a direct appeal, the defendant may file an out-of-time appeal to remedy the loss of his right to appeal
- explaining that a criminal defendant is entitled to an out-of-time appeal, upon a showing that he lost his right to appellate review of his conviction due to error of counsel
- holding that a defendant is entitled to an out-of-time appeal if the failure of his initial appeal is the fault of appellate counsel
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Cook v. State, 313 Ga. 471 (2022)
264 Ga. 872, 874 (1995) (“The attempts to provide sua sponte appellate review of criminal appeals notwithstanding incomplete appellate filings, while laudable, do a disservice to the courts, the criminal defendant, and appellate counsel.”), overruled on other grounds by Cook v. State, 313 Ga. 471
The opinion
Carley, Justice,
concurring specially.
I completely agree with the majority that both of these appeals must be dismissed. The absence of a timely filed notice of appeal deprives this court of jurisdiction.
Nothing ... in Evitts v. Lucey[, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985)] . . . eliminates the jurisdictional requisite of a timely filed notice of appeal and the equally necessary dismissal of any appeal where that jurisdictional requisite was not observed.
Copeland v. White, 178 Ga. App. 644, 645 ( 344 SE2d 436 ) (1986).
However, I cannot agree that this court should “decline to distinguish in the application of the holding in Evitts v. Lucey, supra, between compliance with ‘jurisdictional requisites’ and compliance with ‘procedural or technical rules. . . .’” (Majority at fn. 4) I believe that there is such a distinction. The appellate rule involved in Evitts was a technical nicety which was not jurisdictional in nature. Copeland v. White, supra at 645; Snelson v. State, 190 Ga. App. 320 (1) ( 378 *877 SE2d 723 ) (1989). In my opinion, Evitts
forestalls the dismissal of criminal cases that are otherwise properly before an appellate court for consideration but in which counsel fails to comply fully with the procedural or technical rules of that court.
Snelson v. State, supra at 320 (1). See also Sharpe v. State, 198 Ga. App. 381, 382 (1) ( 401 SE2d 586 ) (1991). Until Whittle v. State, 210 Ga. App. 841 ( 437 SE2d 842 ) (1993), the Court of Appeals consistently refused to dismiss criminal appeals where there was no jurisdictional defect. See, e.g., Lee v. State, 203 Ga. App. 487 ( 417 SE2d 426 ) (1992); Allen v. State, 192 Ga. App. 320 ( 385 SE2d 29 ) (1989). Moreover, Georgia has not been alone in finding, from the teaching of Evitts, a distinction between procedural irregularities and jurisdictional requisites. Charles v. State, 809 SW2d 574, 576 (3) (Tex. App. — San Antonio 1991); Jones v. State, 796 SW2d 183, 187 (5) (Tex. Cr. App. 1990). Accordingly, I cannot agree with the majority’s disapproval of Snelson and Sharpe .
Even if Evitts does not constitutionally require that we automatically consider the merits of a criminal appeal wherein counsel has failed to comply fully with procedural or technical appellate rules, a speedy resolution of criminal appeals is always preferable to a delay of that determination. Thus, I would hold that once a Georgia appellate court’s jurisdiction has been invoked by a timely filed notice of appeal from a criminal conviction, that court should not dismiss because of a subsequent noncompliance with its rules. Instead, it should make every effort to render a decision on the merits of the case. OCGA § 5-6-30; See Lee v. State, supra at 488 (1), overruled in Whittle v. State, supra.
Applying this principle, this Court has held that the Court of Appeals erred in relying on the failure of an appellant to comply with its rules as a basis for its refusal to reach the merits in a civil case. Justice v. Dunbar, 244 Ga. 415 ( 260 SE2d 327 ) (1979). See also Petkas v. Grizzard, 253 Ga. 407, 408 ( 321 SE2d 323 ) (1984); Johnson v. State, 255 Ga. 552, 555 ( 341 SE2d 220 ) (1986).
Thus, I am convinced that the majority opinion’s dicta sanctioning dismissal for non-compliance with “procedural or technical rules” is not only inconsistent with the spirit of Evitts , but is also contrary to the decisions of this Court.
I am authorized to state that Justice Hunstein joins in this special concurrence as to Case No. S94A1326 only.
*878 Decided January 24, 1995 —
Reconsideration denied February 9, 1995.
Walton Hardin, for appellant (case no. S94A1326).
Dennis C. Sanders, District Attorney, M. Eric Eberhardt, Assistant District Attorney, Michael J. Bowers, Attorney General, for appellee.
Claudia S. Saari, for appellant (case no. S95A0346).
J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Rachelle L. Strausner, Assistant Attorney General, for appellee.