Mitchell v. State , 214 Ga. App. 69 ( 1994 )

McMurray, Presiding Judge.

This appeal presents the question of how this court should handle a criminal defendant’s appeal when the defendant’s attorney has failed to file a brief and enumerations of error despite being ordered to do so. In Whittle v. State, 210 Ga. App. 841 (437 SE2d 842) (1993), we ruled that we will not decide a case on the merits without a brief and enumerations of error. However, a majority of this court does not think the appeal should simply be dismissed without requiring the trial court to look into whether the defendant should be given another opportunity to appeal. Accordingly, the following order will be issued: “It appearing that defendant’s counsel, notwithstanding having been ordered to file an enumeration of errors and brief in this appeal, has failed to do so, IT IS HEREBY ORDERED that this appeal be stricken from the docket of this Court without prejudice to defendant’s right to file a direct appeal from his conviction; that the Superior Court of Fulton County, upon return of this case to that court, conduct a hearing at which counsel will be required to show cause why he should not be held in contempt of this Court for his failure to prosecute defendant’s appeal; that the Superior Court of Fulton County report to this Court its findings with regard to counsel’s failure to prosecute this appeal; and that the Superior Court of Fulton County inquire into defendant’s need for appellate counsel and take such action as is appropriate. Following the receipt by this Court of the report of the Superior Court of Fulton County, and following such action as this Court deems appropriate at that time, the appeal may be redocketed in this Court.”

The essential difference between the majority and dissent pertains to what happens to a case such as this case after it is removed from our docket — or more accurately, who has the burden of making it happen. Under the dissent’s scenario, the defendant has the burden of acting, and it is most likely that nothing will happen. The defendant may or may not receive his copy of the dismissal, but probably will not realize he has the right to request an out-of-time appeal and/ or new counsel. Thus, he will do nothing, and will have lost his opportunity to appeal solely because the attorney appointed to represent him did not perform his duty. Under the procedure adopted herein, on the other hand, the trial court must look into the situation even if the defendant does not act, to determine why the first attorney did not perform and whether the defendant needs new counsel.

Appeal dismissed without prejudice and remanded with direction.

Pope, C. J., Birdsong, P. J., Blackburn, J., and Senior Appellate Judge Harold R. Banke concur. Beasley, P. J., Andrews, Johnson and Smith, JJ., dissent.