Conyers v. State
359 S.E.2d 454
Ga. Ct. App.
1987
Check Treatment

*1 591 Goger, Rapoport, appellant. John B. J. Michelle appellees. Smith, Jr., Hall, Jr., Rush S. John E. THE

74244. CONYERS v. STATE. (359 454) SE2d Judge. Pope, appeal This was docketed on December 1986. Defendant’s January brief filing and enumeration of errors were on due 1987. No having of the brief and enumeration of errors been filing having requested granted, no extension of such been Janu- ary requisite filing 20, 1987this court ordered defendant to make the by January yet 26, 1987. No been made. Held: Notwithstanding pro se defendant’s failure to with the rules court, and an order of this we decline to dismiss his every but, instead, will make effort to render a decision on the merits procedure comports holding of the case. Such a in the whole (1) (335 170) App. State, court case of DeBroux v. 176 Ga. 81 SE2d (1985), (105 citing 469 U. S. 387 821) (1985), disapproving as of the dismissal of a criminal defendant’s right. App. first State, as of Johnson v. See also 182 Ga. 477 (1) (356 101) (1987); Cunningham App. State, SE2d 182 Ga. (2) (355 762) (1987). holding panel SE2d The the later case of (1) (345 App. State, Brown v. 179 Ga. SE2d is incon holding sistent with the in DeBroux is therefore overruled. 2. We have reviewed the record on and find no error. Judgment Birdsong, Carley, J., J., C. P. affirmed. Sognier, Benham, JJ., Deen, J., Banke, J., concur. P. P. Beasley, J., dissent. Presiding Judge, dissenting. Deen, January clearly appellant The order of warned the may failure to file the brief and enumeration of errors result in the appellant dismissal of the Because the did not file brief or appeal may pur- ordered, enumeration of errors dismissed, as this be Appeals. suant to Rule 14 of the Rules of the Court of appellant may ap- An in a criminal case forfeit or abandon peal by failing appellate procedure and, with the rules of particular, an Denson, order of this State v. court. See 236 Ga. 239 640) (1976). SE2d Under circumstances almost identical to the case, instant this court has dismissed an in a criminal case. 901) App. (1986); compare State, Brown v. 179 Ga. SE2d (1985), State, 176 Ga. wherein this court noted Brown, that dismissal is not I automatic. As be- be dismissed. this should lieve that respectfully Presid- I am authorized state must Beasley join ing Judge this Banke and dissenting. Presiding Judge, Banke, This case Deen’s dissent. I concur *2 Lucey, 830, 83 distinguished U. S. 387 SC from 82) (1985), State, 176 Ga. from LE2d and will that of the the fact a dismissal right any appellant’s constitutional of the result violation appeal. Evitts, the Unlike the defendant assistance of counsel on appellant present representing himself; the and unlike case any DeBroux, nor action has made no assertion taken he defendant employ suggest resulted from his failure to counsel which would disability. indigency circumstances, I can from Under the or other why with the order of this of no reason his failure to conceive court directing a brief enumeration of errors and him to file consequences warning possible do so should him of the to ground pursuant to Rule for dismissal of the not be considered 14 of this court. Presiding Judge joins in this Deen am authorized to state Judge, dissenting.

Beasley, discretionary given criminal the the dismissal of Even nature of Presiding appeals Appeals 14,1 under Court of Rule concur with totally warrant, if not de- Deen facts of case because the the mand, it.

Appellant employed sentencing During had trial. the counsel at phase, regarding procedure for the trial court advised defendant the attorney appeal, right right bond, an to to an for an the the indigent appeal, right the review. to sentence for A

Trial counsel moved for an bond and new trial. bond immediately appellant apparently set, made months was thereafter, it. Some permitted to

counsel to withdraw based on his motion getting response he that he the effect that was no from defendant and any appellate for had not been for trial nor work. setting hearing trial, ad- the on the motion for new the court procedure obtaining court-appointed

vised defendant of torney a at- the appeal, indigent if the not wish for motion and he was and did represent application subsequently to motion for new trial was denied. himself. No represent

Appellant but chose to himself before this Court has only pursue neglected appeal. Not he failed to refused to has bringing us, he merits before rules for ignored comply. sponte granting time our sua order an extension of why being given appearing

No reason nor this Court should itself proceedings below, undertake a of the should be review Evitts S. dismissed. U. (1985) requiring does not construe the United States Constitution as appellate state ible error courts to search the record in criminal cases for revers- upon the mere of a notice Nor is it a wise policy adopt. appellant’s upon It casts the role of advocate appeals. Court itself. It increases the Court’s workload with frivolous unnecessarily delays finality judgments It penalizes criminal cases. It Rules-abiding appellants only who receive review they the errors enumerate. joins

I am authorized to state that Deen in this July Decided Conyers, pro Willie se.

Dupont Cheney, Attorney, K. District

74362. EARP v. FLETCHER. Presiding Judge. appellee On Jacksonville, December was arrested Al- driving Ap- abama for the offense of under the influence of alcohol. pellee Thereafter, was convicted of the offense and a fine. Department Safety suspension suspending order, of Public issued suspension the driver’s of license The notice of was dated 14, However, March 1985. it was not 21, mailed until March 1985. suspension appellee’s The notice was mailed to the home parents. (Appellee residing was a in Jacksonville, full-time student Alabama.) post The notice delivered officeuntil March early morning 26, meantime, 26, hours of March appellee Jacksonville, arrested Alabama for stop stop sign. at a appears upon inquiry, Department Safety that, It of Public police department appellee’s Jacksonville, informed Alabama suspended. Accordingly, license had been stop in addition to the failure to stop appellee sign charge, driving at a was accused of with a sus- pended license. Appellee pleaded guilty stop charge to the failure to and not guilty driving suspended May a license offense. On Municipal appellee Jacksonville, Court Alabama found guilty driving suspended Appellee ap- offense of awith license.