Gable v. StateGable v. State
- Reporters:
- , , ,
- Before:
- Nahmias
We granted certiorari in this case to consider whether a trial court has the authority to grant an out-of-time discretionary appeal in a criminal case as a remedy for counsel’s failure to timely file a discretionary application. We сonclude that Georgia courts do not have such authority where, as here, that remedy is not required by a violation of the appellant’s constitutional rights.
1. In 1995, a jury found Appellant Homer Gable guilty of rape, aggravated sodomy, aggravated child molestаtion, and six counts of child molestation. The Court of Appeals affirmed on direct appeal. See
Gable v. State,
222 Ga. App. 768 (476 SE2d 66) (1996). Appellant was represented by counsel at trial and on appeal. In October 2008, Appellant filed a pro se extraordinary motion fоr new trial under
The Court of Appeals dismissed Appellant’s direct appeal due to failure to follow the discretionary appeal procedure required by
On December 10, 2009, Appellant filed a motion for an out-of-time discretionary appeal with the trial court, which the court granted the next day on the ground that Appellant’s cоunsel was ineffective in failing to file a timely application for discretionary appeal. Appellant then filed an application for discretionary appeal with the Court of Appeals. The Court of Appeals ruled that the trial court did not have the authority to grant an out-of-time discretionary application and dismissed Appellant’s application because he did not file it within 30 days of the original, July 30, 2009, trial court order denying his extraordinary motion for new trial. This Court granted certiorari.
2. (a) Thе Court of Appeals has held that the failure to meet the statutory deadline for filing a discretionary appeal is a jurisdictional defect. See
Wilson v. Carver,
252 Ga. App. 174, 174 (555 SE2d 848) (2001). See also
Spurlock v. Dept. of Human Resources,
286 Ga. 512, 525 (690 SE2d 378) (2010) (Nahmias, J., concurring specially) (citing
Wilson v. Carver
for the proposition that “[o]ur appellate courts have no jurisdiction over an untimely apрlication”). That holding is consistent with this Court’s cases holding that compliance with the statutory deadline for filing a notice of appeal is an “absolute requirement” to confer jurisdiction on an appellate court. See, e.g.,
Cody v. State,
277 Ga. 553, 553 (592 SE2d 419) (2004);
Gulledge v.
State,
276 Ga. 740, 741 (583 SE2d 862) (2003);
Legare v. State,
269 Ga. 468, 469 (499 SE2d 640) (1998);
The initial statutory deadlinе for filing both a notice of appeal and a discretionary application is 30 days. See
Judge McFadden’s treatise on appellate practice suggests that
Rosenstein
was wrongly decided because it failed to address whether discretionary applications come within subsеction (a) (5) of
there was no discretionary appeal procedure whenO.C.G.A. § 5-6-39 was enacted.O.C.G.A. § 5-6-39 was enacted with the Appellate Practice Act of 1965 and has not been amended since. Ga. Laws 1965, p. 18, § 6.O.C.G.A. § 5-6-35 , which provides for discretionary appeals, was first enacted in 1979. Ga. Laws 1979, p. 619. Although applications for discretionary appeals were not added to the list of items аtO.C.G.A. § 5-6-39 (a) for which extensions are expressly allowed, neither were they added to the list of items atO.C.G.A. § 5-6-39 (b) for which extensions are expressly forbidden. Subsection (a) ofO.C.G.A. § 5-6-39 has a catch-all provision; subdivision (b) does not.
Georgia Appellate Practice § 19:3, n. 6.
This Court has never decided whether
Looking to the text of
The extension request must still be timely under
Our conclusion does not, however, salvage Appellant’s discretionary application. Even assuming that his December 10, 2009, motion for an out-of-time discretionary appeal could somehow be construed as a request for a statutory extension of time, it was not filed within 30 days of the July 30, 2009, order denying his extraordinary motion for new trial, see
(b) Relying on cases like Henry v. State, 278 Ga. 617, 620 (604 SE2d 826) (2004), in which courts have excused a party’s failure to comply with court rules and other non-jurisdictional procedural requirements, Appellant contends that trial and appellate courts have the inherent, equitable power to excuse the late filing of a discretionary appeal. However, courts have “no authority to create equitable exceptions to jurisdictional requirements” imposed by statute. Bowles v. Russell, 551 U. S. 205, 214 (127 SC 2360, 168 LE2d 96) (2007).
Instead, Georgia courts may excuse compliance with a statutory requirement for appeal only where necessary to avoid or remedy a constitutional violation concerning the appeal. For example, in
Rowland,
our Court explained that, because a criminal defendant has a constitutional right to the effective assistance of counsel for his first appeal of right, a trial court has the authority to excuse the untimely filing of a notice of appeal caused by defense counsel’s ineffective representation by granting an out-of-time direct appeal. See 264 Ga. at 874-876. This procedure avoids the constitutional violation that would otherwise arise if deficient representation caused the defendant to lose his first appeal of right. See id. Accord
Evitts v. Lucey,
469 U. S. 387, 395-397 (105 SC 830, 83 LE2d 821) (1985) (holding that due process required the granting of a new
appeal to the defendant when his counsel’s ineffectiveness in failing to comply with state appellate court rules led to the dismissal of his first appeal of right);
Shirley v. State,
188 Ga. App. 357, 360 (373 SE2d 257) (1988) (explaining that “the basis for permitting an out-of-time appeal must have rested upon an issue of constitutional dimension concerning the appeal itself, such as ineffective assistance
(c) Appellant argues that he was entitled to the effective assistance of counsel to pursue his discretionary appeal and that the violation of this constitutional right requires the granting of an out-of-time appeal. But his premise is incorrect. There is no constitutional right to counsel, much less the effective assistance of counsel, in filing or litigаting a post-conviction extraordinary motion for new trial or a discretionary application to appeal the ruling on such a motion. See Murrell v. Young, 285 Ga. 182, 183 (674 SE2d 890) (2009) (holding that a defendant has no constitutional right to counsel to pursue a post-conviction extrаordinary motion for new trial); Richards v. State, 275 Ga. 190, 191 (563 SE2d 856) (2002) (holding that “an out-of-time appeal is not available to one whose conviction has been affirmed on direct appeal”); Gibson v. Turpin, 270 Ga. 855, 859-860 (513 SE2d 186) (1999) (holding that a defendant has a right to counsel at trial and on direct appeal of right “but nо further”). See also Ross v. Moffitt, 417 U. S. 600, 609-618 (94 SC 2437, 41 LE2d 341) (1974) (holding that, following a direct appeal of right, a criminal defendant has no constitutional right to counsel to pursue further discretionary state appeals or applications for review by the United States Supreme Court); Coleman v. Thompson, 501 U. S. 722, 753-754 (111 SC 2546, 115 LE2d 640) (1991) (explaining that, under agency principles, a client bears the risk of attorney error for such matters as filing deadlines unless the error amounts to ineffective assistance in violation of the client’s constitutional right to counsel).
For these reasons, the trial court had no authority to grant Appellant an out-of-time discretionary application from the denial of his extraordinary motion for new trial, and the Court of Appeals therefore properly dismissed Appellant’s application as untimely.
Judgment affirmed.
Ml the Justices concur.
Notes
(a) Any judge of the trial court or any justice or judge of the appellate court to which the appeal is to he taken may, in his discretion, and without motion or notice to the other party, grant extensions of time for the filing of:
(1) Notice of appeal;
(2) Notice of cross appeal;
(3) Transcript of the evidence and proceedings on appeal or in any other instance where filing of the transcript is required or permitted by law;
(4) Designation of record referred to under Code Section 5-6-42; and
(5) Any other similar motion, proceeding, or paper for which a filing time is prescribed.
(b) No extension of time shall he granted for the filing of motions for new trial or for judgment notwithstanding the verdict.
(c) Only оne extension of time shall be granted for filing of a notice of appeal and a notice of cross appeal, and the extension shall not exceed the time otherwise allowed for the filing of the notices initially.
(d) Any application to any court, justice, or judge for an extension must be made before expiration of the period for filing as originally prescribed or as extended by a permissible previous order. The order granting an extension of time shall be promptly filed with the clerk of the trial court, and the party securing it shall serve copies thereof on all other parties in the manner prescribed by Code Section 5-6-32.