313 Ga. App. 297
Ga. Ct. App.2011Background
- Whitfield, who represented himself, was convicted of DUI and failure to maintain lane on February 18, 2008.
- He timely filed a motion for new trial, which the trial court denied on June 27, 2008.
- Whitfield filed an amended motion for new trial; the court denied it and he obtained a discretionary extension to file a notice of appeal.
- Whitfield filed a notice of appeal from the February 18, 2008 judgment (Case No. A09A0888), but the merits were not addressed due to the nature of his second motion for new trial.
- After the Georgia Supreme Court denied certiorari, Whitfield sought an out-of-time appeal under OCGA § 15-6-21(c); the trial court denied, and direct appeals proceeded (Case No. A11A1226).
- On review, the court focused on whether the trial court properly notified Whitfield under OCGA § 15-6-21(c); conflicting address evidence prompted remand for Cambrón-based findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether notice under OCGA § 15-6-21(c) was properly given | Whitfield did not timely receive notice of the denial order. | The trial court chose to rely on the address on file and made a determination under Cambrón. | Remanded to make Cambrón findings; if no notice, grant out-of-time appeal. |
| Whether Case No. A11A1656 is duplicative and merits dismissal | — | — | Dismissed as duplicative of Case No. A11A1226. |
Key Cases Cited
- Shouse v. State, 247 Ga. App. 613 (2001) (notice under OCGA § 15-6-21 can affect out-of-time appeal)
- Cambrón v. Canal Ins. Co., 246 Ga. 147 (1980) (relief where no notice; otherwise denial where notice exists)
- Veasley v. State, 272 Ga. 837 (2000) (untimely notice allows out-of-time relief or set-aside orders)
- Kendall v. Peach State Machinery, 215 Ga. App. 633 (1994) (Cambrón-based analysis requires clear compliance findings)
- Pierce v. State, 289 Ga. 893 (2011) (context for appellate procedure and notice)
- Sea Tow/Sea Spill of Savannah v. Phillips, 247 Ga. App. 613 (2001) (evidence of non-receipt considerations in notice disputes)
- Brown v. E.I. du Pont de Nemours & Co., 240 Ga. App. 893 (1999) (notice-related evidentiary considerations in appeals)