Christopher Fleming v. State ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 15, 2018
The Court of Appeals hereby passes the following order:
A18A1711. CHRISTOPHER FLEMING v. THE STATE.
In 2012, Christopher Fleming pled guilty to child molestation and possession
of a firearm by a convicted felon. The trial court sentenced him to the maximum 20
year sentence on the child molestation count. He subsequently filed a motion to
withdraw his guilty plea. The trial court denied his motion to withdraw his guilty
plea and we affirmed the trial court’s order on appeal in an unpublished opinion.
Case No. A13A1748 (decided January 7, 2014).
In 2017, Fleming filed a pro se motion to correct a void and illegal sentence,
arguing that the trial court was required to issue a split sentence for the child
molestation count under OCGA § 17-10-6.2 (b). The trial court granted the motion
and appointed counsel to represent Fleming at the re-sentencing hearing. After the
hearing, the court re-sentenced Fleming on the child molestation count to 20 years,
with the first 19 years to be served in confinement, and the balance on probation.
Fleming subsequently filed a pro se notice of appeal within 30 days of the sentence.
We, however, lack jurisdiction.
Pro se filings by represented parties are legal nullities. White v. State, 302 Ga.
315, 319 (2) (806 SE2d 489) (2017). In this case, counsel represented Fleming at the
re-sentencing hearing, and there is no indication in the record that counsel filed a
motion to withdraw. See id. at 318 (2) (“[D]efense counsel’s duties toward their
clients extend for at least the 30 days after the entry of judgment when a notice of
appeal may be filed). Accordingly, only counsel was authorized to file a notice of
appeal. See Soberanis v. State, No. A17A1578 (decided Mar. 26, 2018) (pro se
notice of appeal was a legal nullity). Thus, without the proper filing of a notice of
appeal, this case is hereby DISMISSED for lack of jurisdiction. See id.To the extent that Fleming’s right to appeal has been frustrated by errors of
counsel, he may be entitled to an out-of-time appeal. See Rowland v. State, 264 Ga.
872, 875-876 (2) (452 SE2d 756) (1995). He therefore is informed of the following
in accordance with Rowland, 264 Ga. at 875-876 (2): This appeal has been dismissed
because you failed to file a proper notice of appeal. If you still wish to appeal, you
may petition the trial court for leave to file an out-of-time appeal. If the trial court
grants your request, you will have 30 days from the entry of that order to file a notice
of appeal referencing your conviction. If the trial court denies your request, you will
have 30 days from the entry of that order to file a notice of appeal referencing the
denial of your request for an out-of-time appeal. The clerk of court is DIRECTED to
send a copy of this order to Fleming as well as to Fleming’s attorney, who is also
DIRECTED to send a copy to Fleming.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
06/15/2018
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.