Calvin Bowser v. State
A21A1583
| Ga. Ct. App. | Dec 28, 2021Background
- Bowser absconded during his February 2011 jury trial for possession with intent to distribute marijuana; the jury convicted him and the trial court sentenced him in absentia.
- He was taken into custody in November 2015, obtained counsel, and counsel filed an extraordinary motion for new trial, which counsel later withdrew.
- Bowser then filed a pro se motion to dismiss his counsel and a pro se “motion to have his appeal rights granted.” There is no record of counsel formally seeking or receiving leave to withdraw and no court order permitting withdrawal.
- The trial court denied Bowser’s pro se motion, stating appellate rights were already vested; Bowser appealed pro se. His appellate brief failed to comply with multiple Court of Appeals rules.
- The Court of Appeals concluded that because no formal withdrawal of counsel occurred, Bowser remained represented and his pro se filing was a legal nullity; the court vacated the trial court’s denial and remanded with direction to dismiss Bowser’s motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of pro se filings when a defendant still has counsel | Bowser sought to assert appeal rights and have his pro se motion considered | Trial court (and State) treated the filing as unnecessary because appellate rights are vested; implicitly relied on rule that pro se filings by represented defendants are invalid | Pro se filings by a defendant represented by counsel are legal nullities; Bowser’s motion was void and should be dismissed |
| Effect of counsel’s failure to obtain court permission to withdraw | Bowser acted pro se after filing motion to dismiss counsel, treating himself as unrepresented | Counsel never obtained court authorization to withdraw and no order allowed withdrawal; thus counsel remained counsel of record | Formal withdrawal requires court permission; absent an order, counsel remains counsel of record and pro se filings are unauthorized |
| Proper disposition when a trial court lacks jurisdiction over a motion | Bowser implicitly sought merits review of his motion | Trial court denied the motion on the merits instead of dismissing it | When a trial court lacks jurisdiction to decide a motion, it should dismiss the motion rather than deny it |
Key Cases Cited
- Tolbert v. Toole, 296 Ga. 357 (2014) (a defendant cannot simultaneously be represented and act pro se; formal withdrawal requires court permission)
- Brooks v. State, 301 Ga. 748 (2017) (a trial court should dismiss, not deny, motions it lacks jurisdiction to decide)
- Anderson v. State, 335 Ga. App. 78 (2015) (court will liberally construe pro se filings but pro se status does not excuse compliance with procedural rules)
- Fleming v. Advanced Stores Co., 301 Ga. App. 734 (2009) (pro se litigants remain bound by procedural and substantive rules)
- Nelson v. State, 356 Ga. App. 449 (2020) (pro se filings by represented criminal defendants are legal nullities)