Wetherington v. State , 295 Ga. 172 ( 2014 )

295 Ga. 172FINAL COPY
S14A0527. WETHERINGTON v. THE STATE.
NAHMIAS, Justice.
Michael Wetherington appeals the trial court’s denial of his motion for an
out-of-time appeal from his convictions based on a guilty plea in Lowndes
County. On July 27, 1986, Wetherington pled guilty to malice murder,
attempted armed robbery, and attempted kidnapping; he was sentenced to serve
life in prison for the murder and consecutive ten-year sentences for the two other
convictions.
Wetherington did not file a timely direct appeal. However, over the
ensuing two decades, acting pro se, he has filed an unsuccessful habeas corpus
petition, two unsuccessful motions to vacate his sentence, and five motions for
an out-of-time direct appeal. He filed his first motion for an out-of-time appeal
in December 2008. After that motion was denied by the trial court,
Wetherington filed a timely notice of appeal on January 20, 2009. For reasons
not explained in the record, however, the Lowndes County Clerk’s office did not
transmit the notice of appeal and the record to this Court as directed, even after
Wetherington wrote to the clerk’s office in November 2009 to advise that this
Court had not received the record and again requested that the clerk forward it.
There is also no indication in the record that the appeal was ever withdrawn or
dismissed.
In August 2010, Wetherington filed a second motion for an out-of-time
appeal, which was denied in November 2010; he again filed a timely notice of
appeal, but the clerk’s office again failed to transmit it and the record to this
Court. Wetherington filed two more motions for an out-of-time appeal, in
September 2012 and March 2013, which apparently have not been ruled on by
the trial court. On June 24, 2013, he filed his fifth motion for an out-of-time
appeal, which was denied by the trial court in an order entered on September 18,
2013. This is his appeal from that order.
Although Wetherington’s appeal from the denial of his first motion for an
out-of-time appeal was never docketed in this Court because the trial court clerk
failed to transmit the notice of appeal and corresponding record, that appeal
remains pending. See Scroggins v. State, 288 Ga. 346, 347 (703 SE2d 622)
(2010) (holding that although a notice of appeal “did not result in a transcript
and record being transmitted to the Court of Appeals, and no appeal was ever
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docketed in that Court, for the purposes of the trial court’s jurisdiction, the
direct appeal . . . remained pending”). That pending appeal acts as a
supersedeas, depriving the trial court of “‘the power to affect the judgment
appealed.’” Id. (citation omitted). Because Wetherington’s June 2013 motion
for an out-of-time appeal challenged the same judgment of conviction that was
challenged in his pending January 2009 appeal, the trial court lacked jurisdiction
to rule on the motion, and we therefore must reverse the court’s order denying
the June 2013 motion. See id. (“‘When a trial court enters a judgment where it
does not have jurisdiction, such judgment is a mere nullity; but an appeal from
such an illegal judgment will not be dismissed but instead, the void judgment
will be reversed.’” (citation omitted)).1
Judgment reversed. All the Justices concur.
1
We note that if Wetherington’s January 2009 appeal remains pending and the Lowndes
County Clerk’s office continues not to transmit the notice of appeal and the corresponding record
to this Court in accordance with OCGA § 5-6-43 (a), it may be appropriate for Wetherington to file
a petition for mandamus seeking to compel the clerk to perform her statutory duty.
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Decided May 5, 2014.
Murder, etc. Lowndes Superior Court. Before Judge Cowart.
Michael Wetherington, pro se.
J. Daivd Miller, District Attorney, Jessica W. Clark, Assistant District
Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton,
Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General,
for appellee.
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