Stephen Henry Dale v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
April 30, 2019
The Court of Appeals hereby passes the following order:
A19A1757. STEPHEN HENRY DALE v. THE STATE.
On September 11, 2018, Stephen Henry Dale entered Alford1 pleas in Banks
County to aggravated child molestation and cruelty to children in the first degree.
Dale was represented by counsel at the time of his guilty plea, and there is no
indication in the record before us that counsel was permitted to withdraw. On
December 17, 2018, Dale filed a pro se notice of appeal from his conviction. We lack
jurisdiction.
As an initial matter, a notice of appeal must be filed within 30 days of the entry
of an appealable judgment. OCGA § 5-6-38 (a). The proper and timely filing of a
notice of appeal is an absolute requirement to confer jurisdiction on this Court.
Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Here, Dale’s pro se
notice of appeal was filed 97 days after entry of his judgment of conviction, making
his appeal untimely.
Furthermore, a “criminal defendant in Georgia does not have the right to
represent himself and also be represented by an attorney, and pro se filings by
represented parties are therefore unauthorized and without effect.” Tolbert v. Toole,
296 Ga. 357, 363 (3) (767 SE2d 24) (2014) (punctuation omitted). Here, Dale filed
his pro se notice of appeal within the same term of court that his conviction was
entered. See OCGA § 15-6-3 (32) (A) (providing that terms of courts in Banks
County begin on the first Monday in February and August). Accordingly, Dale’s pro
se notice of appeal is also a nullity. Soberanis v. State, 345 Ga. App. 403, 405 (812
1
North Carolina v. Alford, 400 U.S. 25 (91 SCt 160, 27 LE2d 162) (1970).
SE2d 800) (2018) (holding that the defendant’s pro se notice of appeal from his
judgment of conviction, filed within the term of court in which the judgment had been
entered, was a legal nullity); White v. State, 302 Ga. 315, 319 (2) (806 SE2d 489)
(2017) (“[A]t a minimum, legal representation continues - unless interrupted by entry
of an order allowing counsel to withdraw or compliance with the requirements for
substitution of counsel, see USCR 4.3 (1)-(3) - through the end of the term at which
a trial court enters a judgment of conviction and sentence on a guilty plea[.]”).
For these reasons, this appeal is hereby DISMISSED.
Because Dale was represented by counsel before the trial court, he is informed
of the following in accordance with Rowland v. State, 264 Ga. 872, 875-876 (2) (452
SE2d 756) (1995): This appeal has been dismissed because you failed to file a proper
and timely 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 Dale and to
his attorney, and the latter also is DIRECTED to send a copy to Dale.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
04/30/2019
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.