Brantley v. State ( 1989 )

Beasley, Judge,

concurring specially.

I concur to bring an end to this case, but it is procedurally defective and our jurisdiction is questionable.

The late notice of appeal is from the judgment of conviction and sentence and there is no appeal from the later order denying the motion for permission to file an out-of-time appeal. Of course, we could allow the notice to be amended to embrace this ruling, pursuant to OCGA § 5-6-48 (d).

We do not know the reason for the denial, as there is no transcript of the hearing nor any explanation in the order.

The basis for the motion was the allegation that counsel was not appointed until after the appeal time had run. However, it appears that the public defender was appointed to represent defendant on appeal one week after imposition of sentence. The court had told defendant at sentencing that it would have to know within 30 days of sentencing if defendant needed a lawyer appointed so that the court could see “that you have competent counsel to represent you in any appeal.”

The court’s letter a week later appointed the public defender for “appeal of sentence” as well as for motion for new trial, a preliminary matter. It is not limited either to application for sentence review or to appeal to the Court of Appeals from the sentence as the judgment. This letter is the only evidence of post-conviction appointment in the record.

Appellant so understood the appointment, as he wrote to the sentence review panel that he “was appointed the Public Defender’s office to handle the appeal of [his] conviction” and that he understood “they would also handle the appeal of [his] sentence” to the review panel. The public defender pursued a timely motion for new trial but did not file a notice of appeal within 30 days of its denial, as required by OCGA _§ 5-6-38 (a).

In deciding the merits, we are reversing the trial court’s denial of an out-of-time appeal, which would have had to include the conclusion that it was not required as a matter of law. Appellant has not shown that the court erred in this regard. If counsel was remiss in filing the notice of appeal, a claim of ineffective assistance of counsel should be aired in the trial court. Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986); Thompson v. State, 257 Ga. 386, 387 (2) (359 SE2d 664) (1987). Our remanding the case would probably serve no useful purpose, however, as it appears that the unexplained delay was not attributable to defendant. See Cannon v. State, 175 Ga. App. 741, 742 (334 SE2d 342) (1985); Shirley v. State, 188 Ga. App. 357, 360 (1) (373 SE2d 257) (1988).

Orderly procedure helps to assure and protect both uniform treatment of parties and due process of law. I agree to depart from the rules in this case reluctantly but do so in the hope that this case will be an oddity and that the finality to which both defendant and the public is entitled, Ga. Const. 1983, Art. VI, Sec. IX, will better be served by ruling on the merits.

Decided March 8, 1989. M. Muffy Blue, Penny A. Penn, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Lyn K. Armstrong, Linda S. Finley, Assistant District Attorneys, for appellee.