*1 25, 2002. Decided November Burns, Darden, Burns, Richard M. Darden, & Burns Jennifer Jr., Groover, M. Durden, Jr., Lewis District J Thomas Attorney General, Jill E. Thurhert Attorney General, for Zubler, Assistant CAIN v. S02A1332. Hunstein, Justice. for an out of his motion from Marvin Cain Finding that the document murder conviction. from his
time timely-filed equivalent” of a Cain filed constituted the case court and remand reverse the trial with his allowed to that Cain be direction May 20, 1997. He murder on of malice Cain was convicted orally denied at a trial, which filed a motion for new the written record reveals that 17, 1999. The on December stamps denying on two date for new trial has the motion order wording stamp, “Rec in Crim 4, 2000 with the dated it. One The other underneath, “X”marked over it. has an 10” handwritten stamp that the order date and establishes the correct reflects actually April 10, 2000.1 denying Operating the order belief that under the mistaken “April counsel filed a 4,” Cain’s was rendered on motion for new trial allow an out of a “motion to was denominated document that days May from filed on This document was appealed docu- from. the order date of actual filing timely statutory period within the ment was filed his desire in the document 5-6-38. Cain stated See OCGA appeal go that counsel for the forward”; the document noted that “his trial court denied the out of time consented to nearly explanation appeal without motion for an out of time Cain’s years two later. requisite. Timely filing appeal is a of a notice of May Veasley Cain’s County Superior Court Clerk’s Fulton filed with the document was through stamp appears a line drawn closer to have 10 date deputy signature clerk court hand of the the line is of the reveals that examination the date. written under set fil- 30-day Office within forth OCGA 5-6-38 for the period The document forth the title ing set and docket case; party number the name and the fact that appealing Cain had been of criminal convicted offenses contained within indictment; attorney; the name and address of his and a concise statement that Cain desired denial of his motion *2 (albeit the 4 incorrect referencing stamp date order). Thus, document, unde- the the which was served on the evinced Cain’s to seek review and niably appellate gave intent of that Although the State intent. the document does not contain 5-6-37, minor several matters set forth in OCGA omission § they those matters are capable being by cured amendment. See American Oil Co. v. McCluskey, 431) (1967), 224 grounds, 706 rev’d on other Ga. 253 271) (1968) (transmittal of the record amend- by curable Const, ment). VI, See also VI, (juris- Art. Sec. Par. Ill diction over exclusively Court of Supreme Georgia). (c) Court, United Supreme
The
States
Rule
interpreting
3
the Federal Rules of
Appellate
regarding
Procedure
appeal,
notice of
has addressed the issue
by
of documents
that are not
notices of
That
parties
properly designated
litigant
Court has held that “if
tech
papers
files
fashion that is
rule,
may
at variance
the letter of a
nically
procedural
a court
if
litigant
nonetheless
find that
has
complied
rule
action is the functional
rule
litigant’s
what
Co.,
Torres v.
487 U. S.
requires.”
Scavenger
(1988).
Oakland
316-317
2405,101 LE2d
Barry,
SC
Smith
502 U. S.
(1992),
Supreme
SC
LE2d
the U. S.
Court applied
equivalent” concept
complied
find that
inmate
(c)3
with Rule
of a notice
when the
regarding
“briefing
inmate
form” used
the Fourth Circuit
counsel and
appointment
argument
pro
determine
oral
issues
parties.
se
U. S.
Court determined
because
Supreme
indicated the
intent
litigant’s
appellate
“brief”
to seek
review
court,
sufficient
and the
it was
provided
opposing parties
effective
notice of
Id. at 248. The Smith Court held that
document,
litigant’s
“the notice afforded
not
motivation in
sufficiency as a
determines
the document’s
Id. at 248-249. The
Circuit
have
Appeal
applied
Federal
Courts of
decade,
rule from Smith and Torres for over a
any
all
sister
fol
apparent difficulty,
without
and several
states have
(7th
(II) (A)
See,
Dowell,
States v.
The “functional bring construed so as about liberally law that should pleadings and to avoid dismissal of cases. OCGA a decision on merits State, 244 It is 5-6-30; Grantham v. Ga. 775 case law the courts recognizing also consonant with our by the that we designation given bound motions E.g., over nomenclature. look substance Bell, Ga. 818 SE2d (1986). Birt v. (f). Cain in this case clearly
See also OCGA 5-6-48 intended to file a motion for out not a opinion the United States Court’s persuaded by Supreme we are U. S. 248-249 that when a Barry, supra, Smith v. document review, litigant’s litigant’s evinces a seek *3 in the document is immaterial so as long motivation and provides sufficient notice to other the court liti- Barksdale, 981, See also McMillan v. gant’s a followed, Rule 3 form to be (although suggests of magic “there is no document called a Notice Appeal”) v hold that Cain’s motion out of time appeal appeal deemed the functional equivalent should be 10, 1999 reverse denial of motion trial. We ruling remand the case to the trial court with direc- trial court’s and a of tion to treat Cain’s motion as and to timely appeal accordingly. concur, reversed and remanded. All the Justices
Judgment except JJ., Hines, who dissent. Carley, Justice, dissenting. Garley, Cain a he by jury, right
Because was convicted had an absolute to file a appeal. Smith v.
436) (1996).
Compare
Wheeler v.
became viable 31 days after and a denial must be merit, based its lack of than upon rather its untimeliness.
It clear that is denial a motion for “requires determination responsibility who bears the ultimate the failure to file a or attorney the client.” Can- non v. Compare 101) (1987) (trial v. State, court authorized motion though even counsel not responsible for loss of concedes right appeal). Thus, here,
did not it denied Cain’s explain why motion. as Can- non “[t]he trial court’s order fails to reveal a lost specific determination as to whether [A]ppellant’s the result ineffective assistance counsel own *4 conduct.” circumstances, disposition
Under these of this case is proper not, holds, a as the reversal and remand with direction that proceed pursuant Cain be allowed to to the “functional filed notice of the correct resolution is to vacate the trial court’s insufficient order and to remand the case with direction that a new a new order conducted and entered which addresses the merits of the motion for an out-of-time (534 440) State, (2000); v. Bisele App. Barnes 243 Ga. v. 9) State, (1999); Haynes State, v. App. v. Randolph (1997); Hasty (1996); Evans v. The trial court must determine Cannon v. at 473. supra the motion. there reasons” whether such reason would be if the mistaken at 477. One supra rather than a motion for of an attorney. was attributable review of who has lost his “A criminal defendant to an out-of-time due error of counsel is entitled his conviction (2). I dissent [Cits.]” Rowland other than accordance allowing a direct appeal an out-of-time obtaining procedure established that and Justice authorized to state Justice am join Hines in this dissent. 2002.
Decided November Gary Spencer, Hart, Howard, Jr., C. Assis- Bettieanne Paul L. General, Adam Attorney Thurbert E. tant District Hames, General, Attorney
S02A1355. WRIGHT
Sears, Presiding Justice. his Wright motion to Edward for murder and assault. aggravated correct the transcript found that properly appel- Because we conclude that trial court fact, law any justiciable lant’s motion lacked issue of we affirm. felony aggravated affirmed this Court in 1997.1 The evidence showed assault were car, near a and that appellant parked fired at three shots man injured man bullet and another single one was killed to Cor- two bullets.2 November filed a “Motion appellant (f).” The motion rect Altered Pursuant OCGA 5-6-41 Transcript Brown witness testified that after argued transcript, shots, fired there were two bullet holes in the car three appellant police but that a detective testified did recall nearby, parked Wright 2 Id.