Zamora v. State, A97A0720

A97A0720 | Ga. Ct. App. | Mar 12, 1997

485 S.E.2d 214" date_filed="1997-04-03" court="Ga. Ct. App." case_name="Bonner v. Smith">485 S.E.2d 214 (1997) 226 Ga. App. 105" date_filed="1997-03-12" court="Ga. Ct. App." case_name="Zamora v. State">226 Ga. App. 105

ZAMORA
v.
The STATE.

No. A97A0720.

Court of Appeals of Georgia.

March 12, 1997. Reconsideration Denied April 7, 1997.

Peter J. Ross, Atlanta, and Larry H. Tatum, Norcross, for appellant.

William T. McBroom III, District Attorney, and Randall K. Coggin, Assistant District Attorney, for appellee.

McMURRAY, Presiding Judge.

This is a direct appeal from an order of adjudication of guilt and imposition of sentence in a first offender case. The two enumerations of error complain of the sentence imposed on defendant Zamora following the revocation of his probation. Held:

In Dean v. State, 177 Ga. App. 123" date_filed="1985-11-26" court="Ga. Ct. App." case_name="Dean v. State">177 Ga.App. 123, 124(1), 338 S.E.2d 711" date_filed="1985-11-26" court="Ga. Ct. App." case_name="Dean v. State">338 S.E.2d 711, this Court concluded that the discretionary appeal procedure of OCGA § 5-6-35 is applicable to the revocation of "first-offender" probation. OCGA § 5-6-35(a)(5). And this rule has been previously recognized in an appeal where all issues related only to the sentence imposed rather than to the revocation of probation. Tallant v. State, 187 Ga. App. 138" date_filed="1988-05-13" court="Ga. Ct. App." case_name="Tallant v. State">187 Ga.App. 138, 369 S.E.2d 789. Thus, Zamora's failure to comply with those requisite discretionary procedures deprive this Court of jurisdiction to consider this appeal. The appeal must be dismissed. Merciers v. State, 212 Ga. App. 424" date_filed="1994-03-11" court="Ga. Ct. App." case_name="Merciers v. State">212 Ga.App. 424, 444 S.E.2d 416.

Appeal dismissed.

SMITH, J., concurs.

BEASLEY, J., concurs specially.

BEASLEY, Judge, concurring specially.

I am compelled to concur because of the controlling whole court case of Dean v. State, 177 Ga.App. 123, 338 S.E.2d 711 (1985). However, relegating these cases to the probation revocation category, where permission to appeal is required, denied the right to appeal to a first offender who becomes adjudicated guilty of the crime and sentenced to incarceration. Defendants should not lose this valuable right as a consequence of first offender treatment.