*1 orderly contemplated conceptually more (b). precisely (Emphasis supplied.) Id. This is .” § . . OCGA 9-11-50 yet present case, procedure we are now followed the which was the required. holding is a more convoluted ruling, majority’s be re- this case will now I understand the As entering judg- judge, court, after the first trial where turned sponte jury’s verdict, sua vacate will authorized the ment on that re-grant defendant-appellee’s judgment, for directed motion following appel- judgment accordingly, verdict, lant-plaintiff totally enter appeal. position All of this be in to file a new by simply reaching unnecessary could be obviated present Believing holding main at the time. merits of the opinion judicial majority’s econ- both frustrates Division of post- efficiency layer complexity omy adds a needless respectfully practice state, dissent. Judge Sognier joins in I am authorized to state Chief dissent.
Decided March Novy, Vaughan, appel- Jaymes, Eugene Novy M. Deborah for & lant. Wiley appellee. III, Wasden, A. &
Brennan Wasden THE A91A2212.LEE et al. v. STATE. et v. THE STATE.
A91A2214.KEYS al. v. THE STATE. A91A2215.BENSON THE STATE. WRIGHT et al. v. A91A2216. Presiding Judge. Carley, companion appeals appellant before a
Each
in these
was tried
guilty
in connection
found
of criminal
committed
violations
timely pro
against
protest
Thereafter, each filed a
with their
abortion.
respective judgments
of conviction and sentences
jurys’ guilty
the trial court on the
verdicts.
entered
appellant
standing
errors
notwith-
has ever
enumeration of
filed
pro-
directing
to do so. Because
this court’s orders
them
hereby
posture
identical,
con-
cedural
solidated for
these four
appellate disposition
single opinion.
in this
Supreme
United States
After
decision of
in
this
compliance majority *2 Rule a (1), supra State, that, this in DeBroux v. court at nevertheless held “[notwithstanding comply a failure the the criminal defendant’s court, rules of merits of the case.” Since DeBroux was we will make to enter a decision this effort majority
decided,
of this
a
do
court has continued to adhere to its mandate. “We
not find that
the failure ...
the dismissal
to file an enumeration
errors and brief authorizes
appellant’s appeal.
(Emphasis supplied.)
[Cit.]”
Allen
(385
29) (1989).
App.
State,
v.
SE2d
“Notwithstand-
ing
comply
the . . . defendant’s failure to
with the rules and an order
court,
but, instead,
we
of this
every
decline to dismiss his
will make
(Emphasis
effort to render a decision on merits of the case.”
(359
supplied.) Conyers
(1)
454)
State,
v.
(1987).
“The decisions of the Court of
in
insofar
conflict
Supreme
except
bind
with those of
preme
Court shall
all courts
the Su-
precedents.” (Emphasis supplied.)
VI,
V,
Art.
Sec.
Const,
Par. Ill
“[T]he
of the Ga.
of 1983.
older decisions of this court
binding
Supreme
are
Court or overruled
on this court until reversed or
overruled
(Emphasis supplied.)
.
this court.
. .”
McKib-
(77
(1953).
State,
v.
ben
Accord-
ingly,
duty
obligation
we
a
have constitutional
and
to follow the hold-
ings
Conyers
in
Allen,
the whole-court
in
decisions
and DeBroux
depart
principle
unless there is a bona fide reason to
of stare
Having
yet
majority
decisis.
time,
considered the issue
fourth
again
Conyers
Allen,
of this court
adheres to the mandate of
recognizing
speedy
and,
DeBroux
that a
resolution of criminal
preferable
delay
determination,
to a
that,
of that
we reiterate
once
jurisdiction
by timely
this court’s
has been invoked
filed notice of
conviction,
from a criminal
we
not dismiss for the subse-
quent
court,
failure to
with the
rules
but will make
every effort to render a decision on the merits of the case.
2. A
review the records shows
from the evidence adduced
beyond
proof,
trial,
at each
ble
was authorized to find
a reasona-
guilt
Virginia,
doubt,
of the
of the defendant on trial. Jackson v.
Beasley,
respectfully
I
in Division 1
dis-
I
because
concur
dissent.
nothing
830, LE2d
convictions post-appeal to result were so as and sentences which modified suspended statutory penalties sentences fines and 12-month payment the fines. defendants which included conditions *3 Keys trespass, 16-7-21, § OCGA and Chris convicted of criminal order, § 40-6- of with a lawful OCGA also convicted 2. refusal to except occurring Decem- Benson involved in incidents on All were participated January in 1989, 3, in the one 21, and 1990. Benson ber January. (with appeal were of service After notices filed certificates friend”), sought
signed by designated as someone “next defendants county transcripts preparation expense. The mo- record and hearings.” granted were after “the Court conducted extensive tions Transcripts duly prepared, and and records were September 5, in this court on docketed by any perfect their
No action was taken these defendants to filing had the time of error and briefs After enumerations (b) passed, 23 27 ex- orders were entered under Rules and expressly tending time that failure and defendants were warned comply “may appeal[s] subject in result dismissal of the and respective contempt.” offenders] to were sent orders Georgia, Carolina, California, in and addresses of defendants New York. North Joseph sponte except in the The extensions were sua Wright, Domingo. Domingo Wright, ex- Kim alone for an and moved September that he had not received tension on 25 based the claim transcript. Although case had been filed their August granted 30, 1991, the trial court The times for this court an extension. expired filing ago, have months enumerations of any error, briefs, word has been received from of the defendants. or they sup filed, Even when enumerations of error are are “not ported by transcript, argument, reference to the or citation of author ity,” they App. State, 840, are deemed Grier v. abandoned. Ga. (2) (403 Whatley e.g., also, State, 842 Ga. 81, SE2d (2) (398 807) (1990); App. State, Moss v. SE2d 196 Ga. (5) (395 appeal); (pro State, SE2d Burns v. 19) (1990); App. 732, State, Mitchell v. SE2d 195 Ga. (fn. 1) (393 App. 255, State, SE2d Saunders v. (2) (395 only Not are there not any arguments authority giving why citations reasons a certain ruling error, trial court is enumerated as we do not even have “ jurisdiction ‘[T]his enumerations of error. sider mon, court without con ” Tandy Corp. [what error].’ enumerated as v. McCrim (3) (360 70) (1987), quoting Riggins State, long repeated Taylor It is a and firm rule established (2) (399 “[t]he bur- party alleging affirmatively by den is on the error to show it the rec- judgment complained ord, met, when the burden is not (Citation isof assumed to be correct and must be affirmed.” omitted.) punctuation alleged Here the defendants have even er- ror.
Defendants are not entitled to have their convictions reviewed as right by a matter of nor under the Federal Constitution. Thomas v. 260 520) (1990). By they their inaction, their have failed to pursue they their must be dismissed because have jurisdiction been abandoned and because we have no in the absence required by enumerations error § OCGA 5-6-40. supra; Conyers supra; Allen v. supra; other like decisions should be overruled. There “merits of the case” to decide. *4 being so,
That not do reach the issues decided 2 Divisions and 3. Judge, dissenting.
Andrews, expressed appeals herein, For the reasons I would dismiss these prejudice and remand them the trial court to determine they whether have been abandoned. appellants proceed pro se, Since these elected to there no deprived right effectively claim that of them of was to be represented by appeal, holding spirit counsel on neither the nor the of 821) (1985), (105 Lucey, re 830, 83 LE2d SC 469 U. S. v. Evitts Lucey U. S. quires Supreme Evitts v. on the merits.1 be heard guarantees process crimi clause the due found that appeal first of counsel effective assistance defendant nal though right. constitutional or state federal Even there (392 (see appeal Thomas v. an system appellate (1990)), create an elects to where the State pro guilt part adjudicating innocence, integral a defendant’s process appeals demands must with the used cedures due Lucey, supra process. A criminal defendant’s v. Evitts es is an effective assistance counsel to receive constitutional sential comport procedures ensuring appeals due means to necessary representation legal process by providing defendants with adequate the first as of and effective access to them to afford (107 Finley, Pennsyluania right. U. S. v. 539) (1987); Lucey, Lucey, supra. v. v. Under Evitts LE2d Evitts system may be cut off a defendant’s access to State cause mandatory not by failing lawyer provided to follow
his ineffective assistance clearly appellate v. Evitts did rules. require ignore procedures, court violation its that an attempt regardless posture its case on the merits decide “If before the court. instead state chooses dismiss may incompetent attorney rules, local it so when an such has violated upon process rights.” action does not intrude the client’s due Lucey, supra (discussing preserve fair at 399 remedies which appeals system, to the be made available to a de access fendant whose on the merits because of considered counsel). present appeals brought Since the ineffective pro by appellate se, and raise issue of ineffective assistance coun appli process sel, cation, due in Evitts v. has no direct discussion persuasive although influence on this Court’s con has had procedurally appeals. sideration of se holding This Allen Court’s 29) (1989) procedural defaults caused ineffective SE2d assistance of dealt with application se and has no direct to these Nevertheless, Allen continued a that this extent attempt to render a decision on the merits of all Court defaulted cases regardless posture Court, of their before the it should disapproved. As I read 454) (1987), both of which declined to dismiss after are not We do governed not deal here holding Snelson Evitts v. jurisdictional prerequisites in Sharpe Lucey, supra. which this Court determined
appellants briefs, file failed to enumerations error and neither case Lucey required that Evitts that this Court render holds on the merits. a decision appear Lucey rely Rather, on both cases to Evitts v. authority persuasive every for the to decision “make effort to render a Conyers my supra view, merits of the Conyers at In decision on the case.” 591. authority persuasive DeBroux the reliance of Lucey rationale, other based Evitts cases on the same demon- misplaced represent- strates a ing concern that defendants err who while dismissed, themselves not should appeals have their by we for while refuse to dismiss the same errors committed appellate counsel on behalf their is clients. difference that procedural “the the where default is result of ineffective assistance of requires responsibility counsel, the Sixth Amendment itself that imputed the default be to ...” the State the process ensuring legal the defendant has effective as- Murray Carrier, sistance. U. S. responsibility imputed LE2d No such State is where a properly defendant, proceed pro counsel, advised of the elects to represented by proce- se. those For ineffective process implications flowing dural default due from the denial of meaningful right appeals process. access to the For those who waive the represented by attorney proceed pro se, to be an and elect procedural process implications. same cordingly, default has no such due Ac- Conyers holdings requiring believe the and DeBroux every Court “make effort render a decision on the merits” assumption in such se cases are based erroneous that the process present same due se cases concerns are defaulted appellant represented by that exist cases where is attorney. assumption justified by Such cannot be reliance on Lucey any authority By requiring other cited. an effort to Conyers simply cases, reach merits in all such both and DeBroux process by assume that due dismissal, be violated and foreclose this Court’s exercise of discretion under For these reasons Court should overruled. my adopt position view, for this Court to that will it at- tempt proce- every to render an immediate decision on the merits of durally appellant represented case, whether se or counsel, is unworkable. As Evitts v. made clear in the con- represented appellant, necessarily text of a the task is decide every merits, case on the but to ensure that criminal defendant provided process by having adequate due of law access effective appeals system. appellant to the state created When an has failed to provide this Court with enumerations of error or to con- sider the merits we forced in effect to assume the role of counsel appellant, reviewing undertake burdensome task of possible created The same dilemma error. record for the entire Huguley Georgia Supreme rejected finally the Court when State, 253 Ga. accept longer which forced Anders’ motions it would concluded counsel, for colorable record, without assistance review looking recognizing implicitly error, “an claim of at of counsel. for effective assistance record” is substitute a cold Id. *6 respect to for a workable
This laid the basis Court gives Court the discre Rule these defaulted tion disposition basis. The Court on a case case consider their to exercising applied policy consistently its a should now undertake pro represented respect to both se and under Rule with discretion despite of error or brief has been filed Where no enumerations cases. determine, so, as matter of is able to to do the Court court order appeal abandoned, If be dismissed. has should fact, that the been appeal aban to has been some reason believe that there is appeal merits, should be considered doned and should prejudice in to court with and remanded the trial dismissed structions ap hearing to or not the determine whether appeal peal abandoned, the If the has not been has been abandoned. finding, instructions, if so and renew should enter order trial court necessary, appointed counsel, counsel, or the on the appointments replacements proceed pro appropriate se, and make If determines the defendant abandoned of counsel. the trial court making appeal, determination, an order should be entered supported findings situation, former the court’s fact. entry days given the trial court’s or defendant should be respect of the der in which file an out-of-time remand, claim of error which trial court’s determinations on original appeal.2 suggested made This remand could have been expressed in Evitts v. with the concern consistent immediately if the court chooses not to consider proce merits, alternative some system. provided dure be to ensure fair access appeals, Accordingly, the cases would dismiss these and remand pursuant to the above. subsequent file is consistent Dismissal and remand with leave to out-of-time in which this has handled the need for factual determinations
with the manner indigency and determinations of on issues of ineffective assistance 140) appointments counsel. Wallace 833) (1991); Mapp Jacobs Chapman March
Decided Lee, se.
Jesse Keys,
Gaylen pro se. Benson, se.
Richard Joseph Wright, se. appellee. Webb, Solicitor,
James L. A91A2213.MERCIER et al. v. THE STATE. Presiding Judge. Carley, Appellants Nuzum Mercier and were tried before a guilty found protest of criminal violations committed in connection with their They
against appeal jointly judgments abortion. jury’s conviction and sentences entered the trial court on the guilty verdicts. separate
1. Nuzum has filed no enumeration of error or brief. pursuant never order, 14 this court entered an to Rule (a) Nothing him to do so. of this court authorizes the dismissal of a case wherein this court has itself failed to enter *7 order enumeration of errors and brief filed. be More- over, conviction, since Nuzum from a criminal his failure to file an enumeration errors and even if he had been ordered so, would not result in a Lee dismissal. 426) (1992). A review of the record shows from the evidence adduced proof, beyond trial, was authorized to find a reasonable guilt. Virginia, doubt, of Nuzum’s Jackson v. 443 U. S. 307 560) independent addition, “our examina- requir- tion of the record and has revealed no error lawof ing Accordingly, [Nuzum’s] reversal. conviction affirmed.” Allen Conyers See also (2) (359 (2) (335 urges 2. Mercier he was denied the assistance counsel. However, “[t]he trial court’s refusal to allow [someone], who is not a Georgia, during member of the Bar State sit at the defense table appellant’s [or defense] to conduct the was not a denial of con- right right. stitutional nor of to other constitutional representation by attorney ‘While an accused has a represent represented by non-lawyer himself, there is no party.’ (1) (372 [Cit.]” third Cruickshank v. 223) (1988). The trial court was authorized to find that re- Mercier’s