William A. Acree v. State
A17D0140
| Ga. Ct. App. | Nov 9, 2016Background
- William A. Acree's first-offender probation was revoked by the trial court on November 14, 2014 for committing a new offense (kidnapping).
- Acree sought discretionary review of the revocation order on August 18, 2016, nearly two years after the order was entered.
- The Court of Appeals dismissed Acree's first application as untimely (Case No. A17D0053, dismissed September 14, 2016).
- Acree filed a second, out-of-time application claiming his untimely filing resulted from ineffective assistance of counsel and asked the Court to accept the late application.
- The Court of Appeals considered whether it had authority to grant an extension for filing and whether a constitutional violation (ineffective assistance) could excuse the untimely filing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court may accept an out-of-time application for discretionary review | Acree: ineffective assistance of counsel frustrated his right to file timely, so court should accept out-of-time application | State: Acree's request is untimely and outside the court's authority to grant now | Denied — request untimely; Court lacks authority to permit out-of-time application at this stage |
| Whether the Court can extend the filing period after it expired | Acree: equitable relief due to counsel error | State: OCGA timing rules bar late extension; request must be before expiration | Extension denied — OCGA §5-6-39 requires request before period expires |
| Whether ineffective assistance of counsel here constitutes a constitutional violation warranting excusal of procedural requirements | Acree: ineffective assistance of counsel creates a constitutional violation that excuses compliance | State: probation revocation is not a stage of criminal prosecution; only limited due process right to counsel applies | Court: Only to avoid/remedy a constitutional violation may compliance be excused, but determination whether counsel denial occurred must be made first by trial court per B.R.F. procedure |
| Whether the Court of Appeals may make the initial determination about counsel entitlement at revocation and grant relief | Acree: seeks appellate determination and out-of-time appeal | State: trial court must first address entitlement and ineffective-assistance claim | Court: Appellate court has no authority to grant out-of-time discretionary review now; trial court must first decide entitlement under B.R.F. procedure |
Key Cases Cited
- Gable v. State, 290 Ga. 81 (2011) (an appellate court may extend time for filing an application for discretionary appeal only under limited circumstances and request for extension must be timely)
- Banks v. State, 275 Ga. App. 326 (2005) (probation revocation is not a stage of criminal prosecution; only a limited due process right to counsel applies)
- In the Interest of B. R. F., 299 Ga. 294 (2016) (trial court must first determine whether an indigent party is entitled to an out-of-time application to remedy ineffective assistance of counsel)