Jerry W. Spencer v. Robert E. Flournoy, III ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 11, 2019
The Court of Appeals hereby passes the following order:
A20A0201. JERRY W. SPENCER v. ROBERT E. FLOURNOY, III.
Jerry Spencer currently is serving a prison sentence following his 2015
convictions for two counts of child molestation in Cobb County Superior Court. The
current, limited record contains no indication that Spencer’s judgment of conviction
has been reviewed on direct appeal. Spencer now has filed, in this Court, a set of
documents that we docketed as a petition for a writ of mandamus. The mandamus
petition form that Spencer has included with his filing, however, is directed to the
Cobb County Superior Court, not to this Court.
“Generally, the superior courts of this state have the power, in proper cases, to
issue process in the nature of mandamus, . . . and hence the need to resort to the
appellate courts for such relief by petition filed in the appellate courts will be
extremely rare.” Brown v. Johnson, 251 Ga. 436, 436 (306 SE2d 655) (1983).
Rather, the procedure to be followed before seeking to invoke this Court’s original
mandamus jurisdiction is to file the petition in the appropriate lower court first. See
Graham v. Cavender, 252 Ga. 123, 123 (311 SE2d 832) (1984); Expedia, Inc. v. City
of Columbus, 305 Ga. App. 450, 455 (2) (b) (699 SE2d 600) (2010) (“Except in the
rarest of cases, litigants seeking to invoke this Court’s original jurisdiction . . . must
first petition the superior court for such relief.”).
Here, the record contains no indication that Spencer has obtained a ruling in
the superior court on the claims in his mandamus petition. To the contrary, in a
“Motion to Compel Appeals Court to Intervene” (in which Spencer names the State
of Georgia as the defendant) that Spencer has included with the documents filed in
this Court, he alleges that he “recent[ly] sent” – presumably to the superior court –
the mandamus petition that also is included in his current filing. Notably, the current
record contains no indication that the petition in fact has been filed in the superior
court, much less that the superior court has issued a ruling on it. Consequently, as
there is no trial court ruling to be appealed and no mandamus petition addressed to
this Court, Spencer’s petition for a writ of mandamus was improvidently docketed in
this Court.
To the extent that Spencer’s “Motion to Compel Appeals Court to Intervene”
may itself be construed as a petition asking this Court to issue a writ of mandamus,
the same result follows. OCGA § 9-10-14 (b) prohibits any clerk of court from
accepting for filing “any action by an inmate of a state or local penal or correctional
institution against the state, . . . unless the complaint or other initial pleading is on a
form or forms promulgated by the Administrative Office of the Courts.” Spencer’s
“Motion to Compel Appeals Court to Intervene” is not on a form promulgated by the
Administrative Office of the Courts, and we therefore lack the authority to accept it
as a mandamus petition.
For each of the above reasons, Spencer’s petition is hereby DISMISSED as
improvidently docketed.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
09/11/2019
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.