*1
wilfully contemptuous
Yet this
toward
court.
he was
whether
argument
order,
indicates
trial court’s written
is belied
testimony making
the client’s inadmissible
the court relied on
that
its
findings
contempt.
regarding Spruell’s
fact, the
In its
decision
testimony
not realize
that he did
to the client’s
court twice refers
Monday;
Spruell
law,
its conclusions
there on
would not be
contempt,
setting
the court
that constituted the
the behavior
forth
mercy
upon
says
Spruell
of the court.”
client
“cast his
evidence was
1, the
admitted
discussed in Division
As
contempt, regardless
support
inference of wilful
sufficient
sup-
Spruell
would also have
his client. But the evidence
told
what
exhibiting arrogance
poor
Spruell,
ported
while
an inference that
actually
contempt
judgment,
for the court.
did not
act with wilful
(wilful contempt)
making
rather than the latter
the former inference
apparently
judgment),
(poor
was influenced
testi-
the trial court
Accordingly,
mony
the trial
considered.
we vacate
it should not have
the court to reconsider the
remand the case to allow
court’s order and
contempt question
relying
on this evidence. Cf.
God’s
without
Life
County
Stray
Assn.,
Homeowners
Animals v. New North Rockdale
184)
(1986);
Harford,
Reconsideration Taylor, appel- Spruell Dubuc, Sadow, H. & Melinda D. Steven lant. Mary Taylor, Attorney, Jr., Moore, F. District E. Assistant
Albert Attorney, appellee. District THE
A97A0360. BALKCOMv. STATE. Birdsong, Presiding Judge. felony involuntary appeals Lee Balkcom his conviction of Arthur manslaughter trial. Held: and the denial of his motion for new to dismiss this because as a direct
The State has moved untimely, it is and as brought by discre- it has not been tionary appeals procedure. following For the reasons the State’s granted. motion is
Appellant involuntary manslaughter Sep- convicted 16, 1994, tember and no notice of or motion for statutorily required perfect filed within 30 a direct (a). January appellant On however, filed a *2 pro appeal, se motion for out-of-time but this motion was never ruled appellant pro on Later, 23, the trial court. on 1995, March filed a extraordinary se trial, motion 8, 1995, and on June he filed a pro upon se notice of of the trial court’s failure to rule his extraordinary appointment appellant motion for new trial. After filed a motion for September apparently
of counsel in 1995, the trial court granted appearance this motion as counsel entered an on behalf of appellant February August appellant’s 23, on 1996. On 1,1996, coun- appel- sel filed an amended motion for new trial which referred to pro extraordinary lant’s se for motion new trial. After the trial court extraordinary September Septem- denied the motion on 1996, on appellant’s attorney appeal purporting ber filed a notice of to from the 1994 of conviction and the denial of the extraordinary motion for new trial. The was docketed with this Court on October 1996.
Contrary to the contention, dissent’s the trial court did not merely unartfully extraordinary refer to the motion anas motion for appointed appellate new trial. After filed a case, counsel entered the counsel captioned motion, an amended trial, that previously by [Balkcom] amended “the pro motion for new trial filed extraordinary se as an apparent motion for new trial.” Therefore it is Balkcom, that and the trial court all considered this — extraordinary motion for what it was an motion for new trial. any- Even Balkcom does not contend that this motion was thing extraordinary Although other than an motion for new trial. upon regulates dissent relies 5-5-41, section, this extraordinary nothing motions for adds to the dissent’s argument. ruling
Moreover, this does not concern a on a motion for out-of-time or a for out-of-time motion for new trial. though pro Even appeal, Balkcom filed a se motion for an out-of-time appellate the trial court did not rule on that motion before counsel appointed, appointed appellate was appar- and Balkcom’s counsel ently pro appeal by abandoned the se motion for out-of-tiime not seek- ing ruling Additionally, support, on it. this record does not nor does granted authority contend, Balkcom the trial court for Balkcom to file an Therefore, motion for new trial. this an was extraordinary motion for new trial.
Disposition questions concerning proper of this motion raises extraordinary appealing procedure an denial of for (a) (7), discretionary appeals new trial. Under origi- “[ajppeals, separate required procedures when are appeal, motion for new trial.” the denial of an nal legislature, being appellate appears well aware It contemplated practice state, that most in this origi- subsequent separate from to and be filed trial would discretionary appeals thus, to and, nal would be procedure. presented question appel of what
Nevertheless, when with the timely procedure notice late when panel filed, a for new trial is and Court held that the denial of an new trial directly appealable, it as was .from 344). in the case. Walls v. anomaly however, is an reveals, Further this case reflection consequences party to avoid the of fail because its effect is allow a by filing ing timely simply direct file a contrary practice motion templated by new trial. As this would be that con legislature appellate circumstances, our in normal procedure, the extent Walls can be read to authorize such a be overruled. To do otherwise would thwart it must *3 legislative the intent (a) expressed by allowing appeals judg § in direct OCGA 5-6-38 of appeal ments entered more than filed. before the notice of was September appeal The the filed on fact that notice of designates this the of and the denial of case both the conviction extraordinary subject appeal trial as of the motion for new the Regardless subject does to a not render this case direct of designation, appeal that direct was filed in because no viable this appellant’s extraordinary case, the the of denial of motion for original appeal. perforce, separate is, new trial Conse- quently, this is an of the denial the “separate” “original appeal,” for new within lie. was an trial which (7). (a) meaning § 5-6-35 A direct not the does position supra, addition, the taken Walls v. was rejected by majority Court in of this the whole case 679) (Bohannon I). App. State, 203 Bohannon v. (see Although by Supreme I Court Bohannon was reversed .our 653),(Bohannon II)), State, 262 the the Bohannon v. Ga. 697 that arose reversal based on the was conclusion grant trial, and of an motion for new not from court’s out-of-time disagreement espoused in Bohannon with the rationale I. Appeals “[t]he Court of Court held that granted that the trial court reversed because record shows consequently, and, out-of-time case is governing extraordinary appli- trial; is, rules cation for that required. disagree We with the Court of (and Appeals seeking obtaining) that to file an out-of- time non was than an trial rather Bohan- necessarily pursuing motion for new trial.” (Emphasis original.) Id. rejection majority’s
Under these circumstances of the dis- position analysis sent’s in Bohannon I valid: “If dissent’s is still appellant correct, were to neither a civil nor a criminal would ever have comply jurisdictional 30-day with limitation established (a). appellant simply § A civil or criminal could file an asserting only trial, motion for new therein issues that timely could have been in a should raised motion for new filing appeal by and then days a direct secure a notice of within 30 of the denial of the new trial. (7) (a) purport means, Whatever else OCGA 5-6-35 it does not appellate jurisdiction direct to consider the merits of issues confer timely that could and should have been raised in a trial. The law is otherwise clear motion for new trial is denied will be affirmed if the motion raises issues that could should have been raised in a timely [245 motion for new trial. Gaddis Ga. 200 275)]. proper The law is also clear as otherwise to the method appellant appellate which a criminal can secure a direct review timely issues that could and should been have raised in a new trial. That method is to by demonstrating leave secure to file an out-of-time diligence that the lack attributable his [175 counsel and SE2d himself. Cannon v. 342)]. proper appellant It is method in the instant suggests, penalize case hold, must follow. To dissent as the would appellants diligence neither civil nor criminal for their own lack of pursuing appellate rights effectively repeal juris- their and would (a).” 30-day dictional (Emphasis limitation established OCGA original.) supra I,
in Bohannon at 784. supra, May Further, Walls v. as was on decided opinion after the I, 13, whole court in Bohannon decided on March Supreme 1992, but well before the in Court’s reversal Bohannon II on February precedent 1993, it was with inconsistent whole court precedential authority. and, thus, Moreover, is of doubtful consider- ing Supreme our Court’s in II, decision Bohannon it is also doubtful proposition II, that Walls still stands the it asserted. In Bohannon question the Court held that the motion in was not an extraordinary gave per- motion for because new trial the trial court II, new trial. Bohannon motion for file an out-of-time mission to supra court to file from the trial As was obtained at 697. reasoning apply, and the same should Walls, the motion new the denial of an out-of-time in Walls was from trial. There- than from an trial rather Supreme Court in overruled, silentio, fore, sub Walls was today specifically however, doubt, all we II. To remove Bohannon supra. v. overrule Walls (a) questions § from the arise statement These (7) the discre- trial are motions that original appeal,” tionary appeals procedures separate from an “when majority defining phrase. court Bohannon whole without timely original separate from the I the term meant when held holding. in a We re-affirm case. timely neglect to file a notice cannot refuse or
One pass, years a new file an motion for wait for appeal from the denial of that motion boot- and strapping appeal. file a direct then untimely to an direct the unauthorized direct timely requirement is an absolute A filed notice jurisdiction appellate Caldwell, 229 court. Jordan v. confer on 530); Moody Moody, App. 185, 385). jurisdiction Consequently, cannot of this Court untimely upon has direct which the Court no based over jurisdiction. (a) indicating §
Moreover, which separated original tac-. motions for itly trial are what is intended shows “when
appeal.” Although part captions are not Code sections law (OCGA 737)), Earp, § 1-1-7; 523-524 Brown v. (“Filing caption for OCGA 5-6-36 of motion for new notwithstanding verdict where taken gives judgment, ruling, (emphasis supplied)) or order” some Assembly’s idea the General intent. This Code section contem- plates for new trial that some will made appellate appeal to the before the record on forwarded complained provides that when “matters of arise or are discovered appear subsequent otherwise verdict or would and in other like newly evidence, record, such as discovered procedure or instances, a motion for new trial other available shall be together proceedings part filed the all thereon shall with become (a), according appeal.” Otherwise, to OCGA 5-6-36 record part new trial need not be as of the record on transmitted being pre- contemplates Thus, a record that is section pared part timely appeal, of a and not some case that was final taken taken because because *5 332 any extraordinary Therefore,
decided.
motion for new trial not for-
original, timely
appeal
the record of the
filed direct
falls
warded with
(a) (7),
application
appeal
§
and
within OCGA 5-6-35
required.
is
untimely
regard
Moreover,
notice
is
with
to the
attempted
Septem-
of conviction entered on
(a);
generally
§§
5-6-37;
ber
1994. See
OCGA
5-6-34
5-6-38.
Accordingly,
extent
to the
is from a
of convic-
untimely. Thompkins
tion,
State,
it must
dismissed
as
(276
885).
App. 203
SE2d
any
event, the matters asserted in Balkcom’s
potential
motion
new trial concern
errors that should have been
part
part
attacked as
a direct
of the motion for new
judgment.
Therefore,
trial
the
after
these issues are not
subject
of an
motion for a new trial. See Douthit v.
875);
State, 244 Ga.
471
SE2d
Goodwin v.
As Balkcom’s is or is otherwise to the discretionary appeals procedure, it must be dismissed. Appeal J., Johnson, Andrews, C. Blackburn, dismissed. Ruffin Eldridge, Pope, specially. J., JJ, Smith, J., concur. P. concur
McMurray, Beasley, J, J., P. dissent. Presiding Judge, concurring specially. POPE, (b), any §
Under 5-5-41 OCGA out-of-time motion trial for new be an must trial; new under OCGA 5-6-35 (a) (7), any of an denial by application. appear Thus, trial must be it would from the statutes any alone that the denial out-of-time motion trial would new appealed by application. have 653) (1993), Yet in Bohannon v. 697 granted party permis- Court held when a trial sion to file an out-of-time motion and then denied the effectively granting merits, motion on it was an out-of-time appeal; appealable so its denial on the merits was with- application. out appear case,
In this it does not from the record that defendant sought appeal. and obtained file an Accord- ingly, majority agree this case is not Bohannon, controlled and I with the application defendant’s failure file an must result in appeal. dismissal of his 344) (1992),
In Walls v. and in Judge Beasley expresses applica her here, dissent the view that an unnecessary is tion because the from denial of out-of- “separate original appeal” time new trial motion cannot be (a) (7) (appli- original § 5-6-35 See OCGA when there was “[ajppeals, when from are cations appeal, trial”). of an denial simply specific application of But clause she relies on (d), allowing the denial of an extraordi- a direct nary it addressed the con- trial when can be within existing already appealable appeal from an order. Lan- text anof logic guage extraordinary that an from the denial dictate *6 “separate origi- trial in fact
motion for new is original appeal appeal” is no in the case. nal whenever there overruled, Nonetheless, like Walls need because the sought Bohannon, in the in Walls and defendant defendánt obtained permission to file an out-of-time motion for new trial. 204 Ga. at specific language indicating application that an was not 348. The separate necessary because the was not disapproved should be however. joins special Judge I authorized to state Smith in this am concurrence. Judge, dissenting.
Beasley,
(a). (7)
respectfully
is
I
dissent because OCGA 5-6-35
application
petition
requires
It
that an
in the nature of a
for
involved.
(subsection (b))
to
filed in cases in which
a
party
from the
of an
desires
denial
original appeal.
for
trial when
from the
Balkcom’s
September 16,
of
entered
conviction
denying
1994, and
order
his amended motion for new trial
September
13,
The
entered
days
1996.
notice of
was filed within 30
court-appointed attorney
event,
the latter
and
of
Balkcom’s
filed
poverty
pursue
an
on his behalf in order to
affidavit
trying
January
get
Balkcom has been
since
1995
pro
when,
conviction,
months
his
he filed
se a motion
four
after
for
appeal, explaining
by
that it
not filed
counsel
earlier
pay
later,
her
months
because he could not
fee. Two
before that
pro
pleading
a
he
on,
motion was acted
Balkcom
se filed
which
enti-
“Extraordinary
Trial”
Motion for
tled a “Motion
New
and
New
grounds,
general
plus ineffective
Trial.” He asserted the
assistance of
on its
counsel and voidness of
indictment
face.
contents of
grounds appropriate
pleading
determine its
It set out
to a
nature.
v.
trial,
not an
motion. Goodwin
119)
(1978);
State, 244
471
SE2d
Douthit v.
275)
875) (1979);
v.
together supporting with a brief each instance. eventually appoint counsel, The court did entered an who February appearance transcript 23, on After the trial 1996. was filed reporter June, the court counsel filed “Amended Motion argument authority support New Trial” and and citation of of it on August hearing, general grounds, sought 1. The motion was based on the a prayed for new trial. light this, a few later the court ordered that Balkcom’s disposition return him to custodians the order what Hearings referred to as the “Motion for New Trial.” are motions but not on fail (1) any 898, merit. show (1982). Dick hearing August A 26, was held on and the court entered September although inartfully denial of the motion on it inaccurately Extraordinary referred to the matter as a “Motion for legal procedure Motion for New such Trial”; does not exist in and was attempted Considering grounds not raised, Balkcom. that were ordinary styled it as counsel had it and as the cases cited above hold. The amended motion raised general grounds, and it is evident the court did not consider inappropriate “extraordinary” aborted motion which pro expressly Balkcom had se March because the court *7 allegation noted that defendant did not file of ineffective assis- any allegation tance of counsel and ruled that such would merit- ground. less. The March had asserted that It is from the order denying the amended motion and the conviction that Balkcom appeals.
Balkcom is before this Court on a direct The transpired particularly by below, events which and the actions taken court, trial demonstrate that the court treated the amended requirement motion as one which met the for consideration on the (a) despite provides: merits its untimeliness. OCGA 5-5-41 a “When expiration day period motion for a new trial is made after the of a 30 entry judgment, good why from the the motion of some reason must be shown during period, made such which reason shall be judged by Appointing long 30-day period the court.” counsel after the following judgment, acknowledging viability of counsel’s motion by having brought prison, for new trial defendant back to court setting holding hearing, denying and and the motion after consider- ing grounds by its court, but also one raised all demon- permitted strate that the trial court an out-of-time new con- by (a), judicially trial. That is authorized as 653) (1993).1 State, 262 strued. Bohannon never 1995 and sought January initially Balkcom’s its merits and decided. abandoned, be considered should Judge McMurray joins Presiding I am authorized to state dissent. this July 15, 1997.
Decided for appellant. D. Phillips, William Matthews, Assis- Weston, Attorney, Thomas J. District
Charles H. Attorney, appellee. District tant HADAWAY PARTNERS, L.P.-II et al. v. ARVIDA/JMB
A97A0408. al. et Presiding Judge. McMurray, brought Linda R. Hadaway Hadaway E. and
Plaintiffs Thomas against defendants Arvida/JMB action trespass nuisance Inc. to recover for Partners, Managers-II, L.P.-II and Arvida/JMB Creek Upper of Allatoona caused increased siltation damages their Defendants boundary property. which flows over the of plaintiffs. in favor following entry verdict jury Held: maintain that
1. Defendants’ two enumerations of error first their motion for notwithstand- denying trial erred liability for damages trespass the verdict on the issue of ing attorney fees. standard for granting nuisance and on issue (concurred justices) appears to §§ State six contradict OCGA 5-5-41 Bohannon v. (a), (b), (b), contemplate 5-6-39 which that no extension of time shall be that motions for new trial must granted, judgment, late within 30 to be motions for new trial are considered a matter law justices, earlier concurred in all the trial. As stated Court in an decision and an is a distinction between a motion for “there *8 entry 30 of the on the A motion new trial is one made ‘within trial. verdict, jury.’ [OCGA 5-5-40.] entry tried where the case was without filing made after the time for An motion for new is one (Footnote omitted.) State, supra expired. 5-5-40; 5-5-41].” Dick v. at [OCGA §§ trial has See 708) (1). State, (1994); App. v. 210 v. 213 Ga. 117 SE2d Hooks 898-899 Ga. (1993) See Gibbs 640) (1993);King App. v. grounds, J., (Beasley, concurring specially), overruled on other Glover P. 659) (1996). Bohannon, supra, allows a We to follow are bound general grounds extraordi filed late and not be considered an trial on to be delay good reason for the nary the trial is satisfied if grants leave to do so.