Livingston v. StateLivingston v. State
Lead Opinion
Because these cases present similar jurisdictional considerations, they will be treated together. Case No. A96A0679 involves Livingston, who was convicted of conversion of payments for improvement of real property (
1. Although there has been no motion to dismiss filed in either case, “ Tilt is not only the right but the duty of a reviewing or appellate court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.’ . . . [Cit.]” Landor Condo. Consultants v. Colony Place Condo. Assn.,
Although Livingston’s trial concluded February 24, 1995, judgment and sentence was not filed until May 9, and he moved for a new trial on June 1. His notice of appeal states that the motion for new trial was denied on October 16, although the court’s order recites that the motion was heard on October 30. In either event, his notice of appeal, filed November 10, was within 30 days after the
Smith was convicted on August 5, 1994. He filed a motion for new trial on September 1, 1994, but no hearing was held until January 22, 1996.
In a division case, this Court recently held, contrary to previous practice, that premature notices of appeal do not properly invoke this Court’s jurisdiction and such appeals must be dismissed. Staton v. State,
Before Rowland, the Supreme Court determined in Gillen v. Bostick,
The ruling in Gillen brought about a decision on the merits of such cases, which is the State’s public policy.
Following these decisions, this Court viewed prematurely filed notices as reaching maturity and effectiveness upon the filing of the judgment or order. Okross, supra; Brinson v. State,
Treating a premature notice as effectively filed upon entry of the order denying the motion for new trial does not violate either the letter or the spirit of
In the view of premature notices that we have taken since Gillen, the notice must clearly indicate the order from which it seeks relief; otherwise prejudice to the appellee may result. Gillen, supra. The notice of appeal in Staton, supra at 316, did not “minimally suffice as a timely notice of appeal inasmuch as it contained no reference to the . . . judgment from which the appeal was filed. See
In Rowland, the Supreme Court was presented only with notices of appeal filed after the expiration of the statutory period. Defendant Rowland was sentenced on November 8, 1993; his motion for new trial was filed November 15, amended February 7, 1994, and denied March 9, 1994; and his notice of appeal was filed 43 days after the denial. Rowland, supra at 872, n. 1. Defendant Starks, whose appeal was treated in the same opinion, was convicted in 1990, and after appeal and remand, his motion for new trial was denied on November 16, 1993, but his notice of appeal was not filed until 31 days after the denial. Id. at 872, n. 2.
After reviewing various methods by which the appellate courts of this state have reviewed the merits of procedurally deficient criminal appeals, Rowland determined that appeals with late-filed notices could be properly dismissed, as the availability of an “out-of-time appeal” sufficiently protected a defendant’s constitutional rights. Rowland, supra at 875 (2). The opinion does not mention premature notices of appeal, does not mention, much less overrule, Gillen, and does not refer to the treatment the Supreme Court itself and this Court have given to premature notices since Gillen.
Good reason answers why this is so. There is a vast difference between a notice which is filed beyond the time allowed by law, and a notice which is filed before it must be. The late notice fails to keep the case extant and to shift jurisdiction to an appellate court. McKinney v. State,
It would be ironic as well as illogical to relegate defendant to the cumbersome out-of-time appeal procedure which elongates a case’s life just because the time limitation for direct appeals, and its purpose, were met
In Staton, the defendant was convicted and sentenced on December 7, 1994. His motion for new trial, which was filed on December 20, was heard on March 16, 1995, and orally denied. He filed his notice of appeal on March 30, within 30 days of the court’s announced ruling, but the court’s order denying the motion was not actually entered until April 3. On April 21, within 30 days of entry, he asked this Court in a “Notice of Filing” to take notice of his earlier notice of appeal, but we decided he had not invoked our jurisdiction.
The Staton opinion does not address Gillen and its reasoning. Rather, Staton concludes that Rowland impliedly included premature notices of appeal as procedurally deficient because Rowland cited Boothe v. State,
Further, Boothe’s treatment of the premature notice as a defect requiring dismissal had been overruled long before Rowland was decided, in Eller, supra, based upon the rule set forth in Gillen. Thus, Staton’s assumption that Rowland’s citation of Boothe brought premature notices into the ambit of Rowland’s determination that dismissal is appropriate is faulty; premature notices were not considered procedurally or jurisdictionally deficient when Rowland was decided. Given the state of the law then, as well as the fact that Rowland addressed neither premature appeals, nor the Supreme Court’s decisions in Gillen and opinions applying Gillen to criminal cases, nor the manner in which this Court has addressed premature notices since Eller and Gillen, we conclude that Rowland’s reference to Boothe is only for the now unnecessary method of review that Boothe used. We do not read Rowland as overruling our long-standing treatment of premature notices of appeal, and there is no reason to infer that it intended to overrule Gillen or encompass prematurely filed notices of appeal.
Appellants Livingston and Smith have not been dilatory, requiring out-of-time appeals because they did not exercise their rights quickly, nor is there any question what judgments are appealed. The early notices and later entered judgments present no appellate delay at all, much less delay prejudicial to the State.
To consider these and similar premature notices of appeal as void would simply promote fragmentary, wasteful review. From shortly after the very time the trial courts announced the denials of new trials, defendants have persisted in their efforts to obtain review. The delay imposed by dismissing these cases and requiring each appellant to file a motion for out-of-time appeal would be espedally egregious in Smith’s case; he was pronounced guilty and sentenced to life in prison on August 5, 1994, and his conviction has not yet been reviewed. To stall review any longer, solely because his notice of appeal was filed two days before the judgment was entered, violates our responsibility to decide appeals on their merits when possible.
Staton is in error and is overruled; the notices of appeal in these cases invoked this Court’s jurisdiction.
2. Although Livingston enumerates other errors, his primary contention is that he was deprived of representation by counsel, violating the Sixth Amendment to the United States Constitution. Although he recites also Ga. Const, of 1983, Art. I, Sec. I, Pars. XII and XIV, we do not address a state constitutional basis for his claim. It is neither embraced within the scope of the enumeration nor pursued as an independent source of rights. Most of the cases he cites involve only the federal constitutional right: May v. State,
Livingston’s right to counsel arose because he was facing a state felony charge. Gideon v. Wainwright,
After indictment, Livingston’s retained counsel was allowed to withdraw over his objection. By the time of his arraignment six months later, Livingston had not retained new counsel but informed the court he was not there to represent himself. He also stated that despite having talked with at least four other attorneys, he did not have one and implied he could not afford one because his original counsel had kept the funds he had available for this purpose.
At the end of the hearing, the court stated that all it could do was “continue the case until next year and give [Livingston] an opportunity to get another lawyer.” The court granted a continuance without clarifying whether Livingston could afford an attorney and did not order an indigency review. At neither the arraignment nor the hearing on counsel’s request to withdraw, nor at the beginning of trial, did the court ever inform Livingston that an indigent defendant had a right to appointed counsel, warn him of the dangers of proceeding without counsel, or inquire why he had not retained counsel. See Jones v. State,
Livingston argues he was deprived of his right to counsel because the court failed to fully inform him that an attorney could be appointed to represent him if he could not afford one and that it was dangerous to proceed without one. The State contends Livingston is a non-indigent defendant who was not diligent in securing counsel, and that the court found that Livingston had not exercised diligence. True, diligence is a factual question within the court’s discretion. Shaw v. State,
The State also argues that Livingston has not shown himself to have been indigent at the time of trial. A defendant claiming he was denied an appointed attorney to which he was entitled because of indigency must show he was indigent. Bostick v. Ricketts,
The court did not inquire as to why Livingston was not represented but simply asked if the parties were ready. Livingston answered: ‘Yes sir, as ready as we can be.” The court responded: “Sir?,” to which Livingston replied: ‘Yes, sir.”
Later, after the jury had been chosen but before opening statements, a discussion occurred outside the jury’s presence concerning what information could be presented about why Livingston was not represented. After noting that Livingston’s original counsel had withdrawn a year earlier, the court stated: “And I don’t want [the jury] to feel like, just from the Court’s point of view whether it’s fair for us to — for the impression to be given to them that you have not been afforded an opportunity to hire counsel on your own; and that we’re not making you go to trial without a lawyer; it’s just that it has gone on so long it’s time to get it over with, and you had that option, and now you don’t have one.” Livingston’s only response was: “Exactly.” During the discussion, it was also revealed Livingston had spoken with five attorneys but none of them entered an appearance on his behalf. Upon learning this, the court did not inquire whether the failure to have an attorney was beyond Livingston’s control. Although the court’s reference to Livingston’s “opportunity” and “option” indicates there may have been some off-record discussion as to why he was not represented, we cannot assume the court inquired and satisfied itself that Livingston was unrepresented as a result of his own choice or lack of diligence. “ ‘Waiver of counsel. . . cannot be presumed from a silent record.’ ” Waire v. State,
This case must be remanded for the court to make a finding as to indigence and, depending upon that finding, to exercise discretion as to diligence and the appointment of counsel. If Livingston was entitled to counsel, he is entitled to a new trial; if not, the judgment stands. Flanagan, supra at 601.
3. Because Livingston may not be entitled to a new trial, we address his other enumerations, one being that he was deprived of his right to testify in his own behalf. See Mobley v. State,
During the presentation of the State’s evidence the court informed Livingston he had the right to testify in his own behalf. When asked at relevant points whether he would be testifying, Livingston either stated he would not or answered that he had not yet decided. At no time did he express any desire or intention to testify. After the close of the evidence, the court asked whether Livingston wanted the jury charged about his right not to testify and expressed some surprise that he had not testified. During the charge conference, Livingston adamantly declared he had never announced to anyone whether he intended to testify and he had never formed a plan to testify.
He now contends the court paced the trial in a manner that exhausted him and forced him to choose between testifying and making a closing argument, effectively denying his right to testify. To the contrary, the court never told or even suggested to Livingston that he must choose between the two. There is no indication that the trial was improperly managed timewise. In fact, had Livingston been permitted to present his twenty-five character witnesses, the trial would have been even longer, but the court restricted the number to nine because their testimony was cumulative. Although Livingston did state,
4. The final enumeration is that the trial court improperly commented on the evidence in violation of
Case No. A96A1256
5. Smith’s sole enumeration of error is that the evidence was not sufficient to support the conviction under the standard of Jackson v. Virginia,
The victim, a pizza delivery man, testified he arrived at an apartment complex to make a delivery. As he approached the apartment where the pizza was to be delivered, he noticed a group of men in the complex’s common area, one of whom went behind a wall. The victim delivered the pizza, telling the recipient he thought he might be robbed. As he was leaving the complex, the man he saw leave the group emerged, pointed a silver-colored gun at the victim’s face, and told him to approach, but the victim backed away. The robber told him not to try it, and the victim stated he knew what the robber wanted and the gun was not needed. The victim tossed the robber a bag containing money, and the robber caught it. The robber told the victim to turn and walk the other way, which he did.
Johnson testified that he was in a group of men at the complex when the victim arrived. Smith had a silver-colored gun resting on a stump, announced an intention to rob the delivery man, picked something up off the stump, and went around the building. Johnson saw the victim toss the money bag to the ground but could not see the person facing the victim because of a wall. He later saw money in Smith’s hand, and the gun was not on the stump after the robbery. A detective testified that Johnson told him he had seen Smith place a gun to the victim’s head.
Smith argues there was no evidence identifying him as the robber, but the victim clearly identified Smith in court as the perpetrator. Smith also contends there was insufficient evidence he took “property of another from the person or immediate presence of another.” See
Judgment affirmed in part and case remanded with direction in Case No. A96A0679. Judgment affirmed in Case No. A96A1256.
Notes
The trial transcript was completed October 14, 1994, and was filed with the court clerk June 30, 1995, long before the hearing.
Although the order states the hearing was held on January 24, the clerk’s office advises it was actually January 22.
The clerks in these two cases understood it to be so and transmitted the records and transcripts within 20 days (in Smith’s case, slightly more than 20 days) from the orders which activated the notices of appeal.
Smith is in prison; Livingston has suffered “an actual loss of liberty” by being sentenced to a work-release diversion center. See Ward v. State,
That does not mean that, when properly raised, preserved, and briefed, it could not be done.
Concurrence Opinion
concurring specially.
If, as former Chief Justice Roger J. Traynor of the California Supreme Court has said, “errors are the insects in the world of law . . .,” where such errors are harmful, appellate courts must be the exterminators. Although it is a bit embarrassing to extinguish a fire of your own making, it is appropriate to do so when one is wiser today than yesterday. Accordingly, we should bid adieu
After further consideration of Rowland v. State,
Rowland, presented the Supreme Court with only the issue of notices of appeal filed after the expiration of the statutory period. The Supreme Court did not specifically address the issue of premature appeals or mention Gillen. Hence, our use oí Rowland to dismiss the premature appeal in Staton v. State, supra at 317, may itself have been premature. While Rowland did not address the issue before us and did not overrule the line of cases following Gillen, I still believe that the Court’s rationale in Rowland should apply to premature notices of appeal.
In Rowland, the Supreme Court held that our practice of ruling on late-filed appeals, while laudable, “requires the appellate court to ignore jurisdictional and procedural statutes and rules.”
I disagree with the majority’s conclusion that premature notices of appeal are “not jurisdictionally defective but only procedurally irregular.” If the notice of appeal does not comply with
Nevertheless, because Rowland did not address the issue of premature appeals and because Rowland did not overrule that line of cases following Gillen, I believe this Court is compelled to follow the rule in Gillen until the Supreme Court has an opportunity to address the issue before us.