Daniel Adam Delevan v. State
A17E0047
| Ga. Ct. App. | Apr 27, 2017Background
- Daniel Delevan was convicted of third DUI (high and aggravated misdemeanor) and sentenced to 36 months with 180 days to serve.
- Trial court initially granted a supersedeas (appeal) bond; Delevan’s motion for new trial was denied on Nov. 22, 2016, and the 30-day appeal period expired.
- Delevan later sought an out-of-time appeal; the trial court denied continuing the bond and issued an order revoking the supersedeas bond after a hearing on the State’s “Motion to Enforce Sentencing.”
- Delevan filed an emergency Rule 40(b) motion in the Court of Appeals asking the court to vacate the order revoking bond to prevent the appeal-bond issue from becoming moot.
- The record indicates defense counsel attended the revocation hearing and argued for an out-of-time appeal; the trial court evaluated the statutory four-factor test and found Delevan a flight risk and a danger to the community.
- The Court of Appeals considered only whether to exercise Rule 40(b) to vacate the bond revocation, not the merits of the out-of-time appeal denial (which is directly appealable).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Court of Appeals should use Rule 40(b) to vacate trial court order revoking supersedeas bond | Delevan: vacate revocation to avoid mootness because he may serve his 180-day term before appeal resolves | State: revocation was proper under OCGA §17-6-1(g) after hearing applying four-factor test; Court should not intervene under Rule 40(b) | Denied: Rule 40(b) relief not warranted; Delevan failed to show entitlement to emergency relief |
| Whether denial of out-of-time appeal is before Court of Appeals on this motion | Delevan: contends trial court improperly denied out-of-time appeal, making bond revocation improper | State: denial is directly appealable and not the proper basis for Rule 40(b) emergency relief | Court: decline to decide merits here; denial of out-of-time appeal is separately appealable |
| Whether trial court violated Delevan’s notice/hearing rights when revoking bond | Delevan: claims he was denied notice and opportunity to be heard on bond revocation | State: record shows defense counsel attended and argued; appeal bond termination upon expiry of appeal period is governed by statute | Court: record does not support denial-of-notice claim; counsel was on notice and participated |
| Whether trial court abused discretion in applying four-factor test to deny bond | Delevan: challenges revocation as effectively moot without relief (but does not contest factual findings) | State: trial court found flight risk and danger; such findings justify denial under Luke and related precedent | Court: no abuse shown; absent transcript, appellate court assumes evidence supported findings; denial stands |
Key Cases Cited
- Stephens v. State, 291 Ga. 837 (2012) (denial of out-of-time appeal is directly appealable)
- Wade v. State, 218 Ga. App. 377 (1995) (no constitutional right to bond pending appeal)
- Luke v. State, 282 Ga. App. 749 (2009) (four-factor discretionary test for appeal bonds under OCGA §17-6-1(g))
- Knapp v. State, 223 Ga. App. 267 (1996) (trial court must give notice and fresh determination on custody after imprisonment)
- Williford v. State, 218 Ga. App. 522 (1995) (affirming that an affirmative answer to any one four-factor question supports denial of appeal bond)