Wilkes v. State ( 1973 )

Evans, Judge,

concurring specially. The majority opinion considers this case on the merits despite our Rule 18 (c, 2) (Code Ann. § 24-3618), which provides that any enumeration of error not supported in a brief by citation of authority or argument shall be deemed to have been abandoned.

This court should treat all litigants alike — if we are going to apply Rule 18 (c, 2) as to some litigants, we should apply it to all — or we should repeal the rule. In this case there was no brief and no oral argument in support of any enumeration of error. Thus, the defendant (appellant), under our rule, had abandoned each and every enumeration of error.

The majority seems to feel that because this defendant is indigent and not represented in this court by counsel, we should look the other way as to Rule 18 (c, 2). I do not agree. The defendant wished to represent himself in the trial court, which was permitted; although the trial judge did appoint an attorney to render such assistance as might be needed. He never did request that counsel be appointed to represent him.

After conviction, instead of asking the court to appoint counsel to file his appeal, so it might be properly brought to and argued in this court, he merely requested that the trial court provide him with the necessary legal documents for appeal, which request was granted. Upon request, he could have had an attorney file a brief for him, or make oral argument in this court. Thus, he would not have abandoned his enumerations of error.

The majority opinion scrutinizes the trial court proceedings and holds that none of the constitutional rights of defendant were denied. I do not reach that point; under the posture of this case, defendant has abandoned all enumerations of error and for that reason the judgment of the lower court must be affirmed.