Portee v. StatePortee v. State
Pro se claimant Anthony Leroy Portee appeals from the order entered by the Superior Court of Clayton County striking his answer under
The State subsequently filed its motion to strike Portee’s answer on the grounds that it had not been verified and failed to comply with the specific pleading requirements imposed by
On appeal, Portee asserts 11 enumerations of error. As an initial matter, we point out that Portee has failed to comply with the rules of this Court by not including a statement of how he preserved his alleged errors for appeal. See Court of Appeals Rule 25 (a) (1). Failure to abide by the rules of this Court can subject an appeal to dismissal without further review. See Court of Appeals Rule 7. Nevertheless, because Portee is appealing pro se, we will exercise our discretion and proceed to review his claims of error to the extent possible given the limited record before us. See
Finch v. Brown,
1. In a civil in rem forfeiture action, a claimant’s answer must be “in strict compliance with the special pleading requirements of [OCGA]
(a) Portee does not contest the fact that his answer did not contain a verification as required by
“A party alleging error carries the burden of showing it affirmatively by the record, and when that burden is not met, the judgment is assumed to be correct and will be affirmed.”
Boles v. Lee,
(b) Portee also appears to concede that he never filed an amendment to his answer to insert a verification, emphasizing that he did not know that a claimant could amend his answer to cure such a defect. However, in several enumerations of error, Portee contends that because he was a pro se claimant, either the State or the trial court should have advised him that under the applicable procedural rules, he could amend his answer as of right to correct the deficiency. We disagree. A forfeiture action is a civil proceeding, see
Sanders v. State of Ga.,
Despite Portee’s apparent concession that he never amended his answer, we note from our review of the record that Portee’s response to the State’s motion to strike did contain a purported verification that stated: “The facts stated are true to the best of my knowledge.” Yet, even if Portee’s pro se response is liberally construed as an amended answer, the answer remains deficient because the verification was not made under oath, was not executed before a notary public, and contains a representation that is equivocal at best. See
Dearing v. State of Ga.,
2. In several enumerations of error, Portee argues that the State failed to substantively prove its forfeiture claim and violated his constitutional rights in its seizure of his vehicle. However, at the pleadings stage of the proceedings, the State was only required to make out a prima facie case for civil forfeiture based on the allegations of its complaint.
Howard v. State of Ga.,
3. Portee further contends that the State’s complaint should have been dismissed because an evidentiary hearing on the merits of the forfeiture claim should have been held within 60 days of the service
of the complaint under
4. Portee also argues, without elaboration and without citation to the record, that he “was denied due process of his rights to a fair impartial trial and his right to present evidence on his behalf.” To the extent that Portee is arguing that he was entitled to a hearing on the substantive merits of the State’s forfeiture claims, his argument is unpersuasive because his answer was properly stricken, as discussed above. To the extent that Portee is arguing that the hearing held on the State’s motion to strike was conducted in an unfair manner, we cannot review his argument and must presume that the proceedings occurred in the proper fashion because the transcript of the hearing has not been included in the record on appeal.
Blue v. Blue,
5. Finally, Portee asserts that he “never received any notice of docketing, court proceedings, Judge presiding over case, or hearing dates” and was never advised “that he was to represent himself.” However, he provides no citations to the record to support these assertions, and we have found no affidavits, testimony, or documentary evidence in the record that would support them. Hence, this enumeration of error lacks merit.
Judgment affirmed.
Notes
Many of Portee’s enumerations of error are vague and substantively overlap with, other enumerations. Thus, we have grouped many of Portee’s enumerations together for purposes of our analysis.
Given the record before us, we are constrained to hold that the trial court properly denied Portee a continuance to obtain a proper verification. However, the exhibits attached to Portee’s appellate brief (which are not found in the record) could be construed as supporting his claim that he was denied proper access to the detention center law library and to basic legal resources such as a notary public. When an inmate claims that he was denied all access to a j ail law library or jail legal resources during the course of litigation and that the denial prevented him from meeting procedural deadlines or from submitting proper pleadings, the claim is a serious one
and should he carefully considered by the trial court. See generally
Bounds v.
Smith,
Likewise, Portee’s argument that the trial court should have conducted a probable cause hearing is without merit because such a hearing is required only when, inter alia, the claimant of the property has “complied] with the requirements for an answer to an in rem complaint.”