Charlie Branner, Jr. v. Michael W. Gowen ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 23, 2019
The Court of Appeals hereby passes the following order:
A20A0785. CHARLIE BRANNER, JR. v. MICHAEL W. GOWEN et al.
Charlie Branner, Jr., filed a mandamus petition seeking to compel the trial court
to schedule a hearing in a criminal matter. The trial court dismissed the petition, and
Branner filed this direct appeal. We lack jurisdiction.
The relevant facts show that, in November 2018, Branner pled guilty to several
criminal charges. Shortly thereafter, Branner filed a motion to withdraw his plea, and
he sought appointment of new counsel. In April 2019, Branner filed a pro se
mandamus petition in which he sought to compel the trial court to conduct a hearing
on his motion to withdraw his plea. The mandamus petition was assigned a new civil
case number. The trial court dismissed the petition, and Branner filed a pro se notice
of appeal.1
Under the Prison Litigation Reform Act, any appeal in a civil case that was
initiated by a prisoner must come by discretionary application. See OCGA § 42-12-8;
Jones v. Townsend, 267 Ga. 489, 490 (480 SE2d 24) (1997). Because Branner is
incarcerated, he was required to file an application for discretionary appeal in order
to appeal the civil mandamus ruling. See Brock v. Hardman, 303 Ga. 729, 731 (2)
(814 SE2d 736) (2018).
1
The trial court noted that the hearing Branner sought to compel had already
taken place. Branner was represented by appointed counsel at the hearing. The trial
court subsequently denied the motion to withdraw the guilty plea, and the appeal of
this ruling is currently pending as Case Number A20A0424.
Although the mandamus petition was given a civil case number, we note that
the issues raised pertained to Branner’s criminal case. To the extent that the petition
may be construed as a criminal rather than a civil matter, Branner’s notice of appeal
is a nullity because he is represented by counsel in his criminal case. See Tolbert v.
Toole, 296 Ga. 357, 363 (3) (767 SE2d 24) (2014) (“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.”); Soberanis v. State, 345 Ga. App. 403, 405 (812 SE2d 800) (2018) (notice
of appeal filed by defendant “was a legal nullity”).
For these reasons, we lack jurisdiction over this direct appeal, which is hereby
DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
12/23/2019
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.