McClure v. State

Andrews, Judge,

concurring specially.

I agree with the judgment that the order of dismissal must be reversed and the case remanded to the trial court. However, the conclusion that the case should be remanded for a hearing to determine if the defendant is indigent is unnecessary since the record reflects the trial judge signed a certificate finding the defendant indigent after a hearing on October 3, 1991.

The letter of the trial court dated August 20, 1990, addressed to the defendant (a copy of which was also filed with the clerk of court on the same day) instructing the defendant to contact the court and arrange a time for an indigency hearing, and the lack of any response from the defendant, was a sufficient factual basis to sustain a determination that the defendant’s conduct purposefully delayed appellate review from that time until counsel entered of record in his behalf on October 19, 1990. “[T]rial judges must be allowed to determine, as a matter of fact, whether a convicted person’s conduct . . . has purposefully delayed review by an appellate court. And if there is evidence to sustain such a factual determination by a trial judge, such determination will not be reversed on review in the appellate court.” State v. Denson, 236 Ga. 239, 241 (223 SE2d 640) (1976).

After a hearing, the trial court dismissed the appeal under the authority of OCGA § 5-6-48 for failure to timely file a transcript as required by OCGA § 5-6-42.1 agree with the majority that the dismissal was based on the delay during the period of time the defendant was unrepresented by counsel. In so doing the trial court is required to exercise its legal discretion to determine whether the delay was unreasonable, and if so, whether it was also inexcusable and was caused by the appellant. Sellers v. Nodvin, 262 Ga. 205 (415 SE2d 908) (1992); Van Diviere v. Delta Airlines, 204 Ga. App. 573 (420 SE2d 27) (1992); OCGA § 5-6-48 (c), (f). The trial court’s finding that the failure to timely file the transcript was caused by the defendant’s conduct was a sufficient determination that the delay was purposefully caused by the defendant. The trial court made no finding, however, that the delay was unreasonable and inexcusable. See Sellers, supra (establishing requirements for a determination of unreasonableness); Van Diviere, supra. Accordingly, the dismissal must be reversed and the case remanded, not for an indigency hearing, but for the trial court to exercise its discretion and make findings on these issues. Crenshaw v. Ga. Underwriting Assn., 202 Ga. App. 610, 611 (414 SE2d 915) (1992); Georgia Dept. of Human Resources v. Patillo, 194 Ga. App. 279 (390 SE2d 431) (1990).

Decided July 14, 1992. Jon W. McClure, Melnick, Moore & Elliott, Larry M. Melnick, for appellant. Keith C. Martin, Solicitor, for appellee.