Tedric Leslie v. State ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 01, 2018
The Court of Appeals hereby passes the following order:
A18A2139. TEDRIC LESLIE v. THE STATE.
In 2013, a jury found Tedric Leslie guilty of kidnapping and armed robbery,
and the trial court imposed a total sentence of life imprisonment. Leslie’s trial
counsel filed a timely motion for a new trial on the same day that his sentence was
entered. The trial court issued an order permitting Leslie’s trial counsel to withdraw
in August 2015. A second attorney – Elizabeth Rogan – appeared on Leslie’s behalf
at that time and filed an amended motion for a new trial in March 2016. The trial
court denied Leslie’s motion for a new trial on June 20, 2016, and, on July 14, 2016,
Leslie filed a pro se notice of appeal. The following month, the trial court issued an
order permitting Rogan to withdraw as Leslie’s counsel and instructed the public
defender to provide appellate counsel for Leslie. Since then, at least four additional
attorneys have filed entries of appearance on Leslie’s behalf in the trial court. On
October 12, 2016, one of those attorneys – Lawrence Daniel – filed a notice of appeal
on Leslie’s behalf, also seeking review of the June 2016 order denying Leslie’s
motion for a new trial. For the reasons that follow, we lack jurisdiction.
First, Leslie’s pro se notice of appeal is a nullity. “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); accord White v. State, 302 Ga. 315, 319 (2) (806 SE2d 489)
(2017) (the defendant’s pro se motions to withdraw his guilty pleas were legal
nullities because he was represented by counsel when he made them). “A formal
withdrawal of counsel cannot be accomplished until after the trial court issues an
order permitting the withdrawal. Until such an order properly is made and entered,
no formal withdrawal can occur and counsel remains counsel of record.” Tolbert, 296
Ga. at 362 (3) (punctuation omitted). Here, the record shows that Rogan was Leslie’s
counsel of record from August 2015 until the trial court issued its order permitting
her withdrawal in August 2016. See id. Consequently, Leslie’s July 2016 pro se
notice of appeal is a legal nullity. See id. at 362-363 (3); accord Soberanis v. State,
345 Ga. App. 403, 405 (812 SE2d 800) (2018) (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 because the record contained no
indication that the trial court had formally permitted his trial counsel to withdraw).
Second, Leslie’s subsequent, counseled notice of appeal is untimely. A notice
of appeal must be filed within 30 days of entry of the trial court order sought to be
appealed. 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). The October 2016 notice of appeal filed by
Daniel is untimely, as it was filed 114 days after entry of the order denying Leslie’s
motion for a new trial. Moreover, we cannot treat the October 2016 filing as an
amended notice of appeal, because there is nothing to amend – “a pleading purporting
to amend a prior filing that was a nullity . . . does not relate back in time to the date
of the non-filing.” White, 302 Ga. at 320 (3). For each of the above reasons, this
appeal is hereby DISMISSED for lack of jurisdiction.
Because Leslie was represented by counsel before the trial court, he 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 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 Leslie and to
his attorney, and the latter also is DIRECTED to send a copy to Leslie.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/01/2018
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.