Leonard Atkins v. State

Court of Appeals
of the State of Georgia
ATLANTA,____________________
May 05, 2015
The Court of Appeals hereby passes the following order:
A15A1104. LEONARD ATKINS v. THE STATE.
Leonard Atkins has filed a pro se notice of appeal from the trial court’s order
denying his motion to correct his allegedly void sentence.
At the outset, we question the “filed” date stamped on Atkins’s notice of
appeal. The trial court clerk’s endorsement as to the date of filing is presumed to be
correct, but this presumption is rebuttable. See Brinson v. Georgia R. Bank & Trust
Co., 45 Ga. App. 459, 461 (165 SE 321) (1932). “The actual date of filing is the date
upon which the paper is handed [or delivered] to the clerk to be filed.” (Citation
removed.) Hood v. State, 282 Ga. 462 (651 SE2d 88) (2007).
Here, the record suggests that, in a single mailing, Atkins submitted to the trial
court both his notice of appeal and a notarized request to proceed in forma pauperis
on appeal. However, the two documents are stamped as filed on different dates: the
request to proceed in forma pauperis is stamped-filed November 25, 2014, while the
notice of appeal is not stamped-filed until January 7, 2015.1 Because the date of
filing is the date the paper is delivered to clerk for filing, it seems that these
documents should have been stamped as filed on the same date.
1
The record suggests that Atkins’s notice of appeal was not stamped-filed until
the trial court approved his request to proceed in forma pauperis on appeal. This
practice conflicts with OCGA § 9-15-2 (a) (1), which provides that when a party is
unable to pay any fee or cost which is normally required in the court, “if the party
shall subscribe an affidavit to the effect that because of his indigence he is unable to
pay the costs, the party shall be relieved from paying the costs and his rights shall be
the same as if he had paid the costs.”
Nonetheless, regardless of whether his notice of appeal was timely, we lack
jurisdiction to consider Atkins’s appeal. In his appeal, he is challenging the trial
court’s rejection of his argument that his sentence is void because there was
insufficient evidence as to venue. This argument is a challenge to his conviction, not
his sentence. And it is well established that “a petition to vacate or modify a
judgment of conviction is not an appropriate remedy in a criminal case,” and any
appeal from an order denying such a motion must be dismissed. Harper v. State, 286
Ga. 216, 218 (1) (686 SE2d 786) (2009); see also Roberts v. State, 286 Ga. 532 (690
SE2d 150) (2010). Accordingly, this appeal is hereby DISMISSED for lack of
jurisdiction.
Court of Appeals of the State of Georgia
05/05/2015
Clerk’s Office, Atlanta,____________________
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.