Copeland v. White , 178 Ga. App. 644 ( 1986 )

Deen, Presiding Judge.

On September 8, 1983, the Probate Court of Fayette County found the appellant, Herbert Copeland, guilty of driving under the influence and improper parking. Thereafter, Copeland applied for a writ of certiorari with the Superior Court of Fayette County, naming the probate court judge as respondent and the district attorney as the opposite party. No answer to the writ was filed within the thirty days allowed, and Copeland failed to seek an order requiring an answer; the superior court consequently dismissed Copeland’s petition on December 9, 1983, for failure to prosecute. This court subsequently affirmed that dismissal. Copeland v. White, 172 Ga. App. 198 (322 SE2d 523) (1984).

Copeland next filed with the superior court a notice of appeal on November 2, 1984, seeking review of his conviction, the judgment of which on remittitur had been entered on or about October 18, 1984. On behalf of the probate court judge and the district attorney, the county attorney filed a motion to dismiss the appeal on the bases that the prior dismissal of the application for certiorari barred another application and that no regular appeal to the superior court had been timely filed. The superior court granted that motion, and Copeland’s appeal to this court followed. Held:

The appellees initially attack the propriety of Copeland’s direct appeal here, contending that the discretionary appeal procedures were required in this case under OCGA § 5-6-35 (a) (1). Generally, appeals from decisions of the superior court reviewing decisions of lower courts by certiorari or de novo are discretionary with this court, but that Code section specifically exempts cases concerning decisions of the probate courts. Accordingly, this direct appeal is appropriate.

We realize that in King v. State, 176 Ga. App. 137 (335 SE2d 439) (1985), this court allowed a discretionary appeal from a superior court’s review of a probate court decision. “The best way to deal with an error is to correct it, and the next best is to confine it.” Van Horn v. McNeill, 79 Ga. 121, 124 (4 SE 111) (1887). It is apparent that this procedural issue was not raised in King v. State, supra, but, advancing the best way, to the extent that it implies that discretionary procedures are necessary in this case, King v. State must be disapproved.

In moving for dismissal of Copeland’s notice of appeal before the superior court, the appellees relied upon City of Atlanta v. Schaffer, 245 Ga. 164 (264 SE2d 6) (1980), which held that the involuntary dismissal of a certiorari petition for failure to prosecute operated as a dismissal on the merits and thus barred a second certiorari. However, as noted by the appellant, OCGA § 9-11-41 (b) was amended, effective November 1, 1982, to provide that a dismissal for failure to prosecute does not operate as an adjudication on the merits. Copeland thus would not have been barred from renewing his application for certiorari within six months of the final entry of judgment following this court’s affirmance of the dismissal of the original petition.

Nevertheless, rather than renewing the certiorari, Copeland chose to seek a regular appeal of the conviction in the superior court. Following his conviction by the probate court on September 8, 1983, Copeland had two alternate post-conviction remedies, a right of appeal to the superior court within thirty days under OCGA §§ 5-3-2 and 5-3-20, and application for certiorari under OCGA § 5-4-3. See Pierce v. Felts, 146 Ga. 809 (92 SE 541) (1917); Stephens v. Bell, 41 Ga. App. 353 (153 SE 99) (1930). He elected to pursue certiorari, and the right of renewing his action within six months pertains only to that remedy of certiorari. Copeland’s attempt on November 2, 1984, to commence a regular appeal in the superior court thus was not timely, and the appeal was properly dismissed.

Much of the dissent actually concerns the correctness of the Georgia Supreme Court’s decision in City of Atlanta v. Schaffer, 245 Ga. 164, supra, and this court’s reliance upon Schaffer in Copeland v. White, supra, considering the due process pronouncements in Evitts v. Lucey, 469 U. S._(105 SC 830, 83 LE2d 821) (1985). Nothing in the dissent or in Evitts v. Lucey, however, eliminates the jurisdictional requisite of a timely filed notice of appeal and the equally necessary dismissal of any appeal where that jurisdictional requisite was not observed. Evitts actually involved the state of Kentucky’s requirement of filing a formal “statement of appeal,” a technical nicety distinct from the mandatory notice of appeal and one not required in Georgia. Accordingly, Evitts has no bearing on this case.

Judgment affirmed.

Banke, C. J., McMurray, P. J., Birdsong, P. J., Sognier, Pope and Beasley, JJ., concur. Carley, J., concurs in the judgment only. Benham, J., dissents.