Harper v. State

154 Ga. App. 550 (1980) 269 S.E.2d 56

HARPER
v.
THE STATE.

59699.

Court of Appeals of Georgia.

Submitted April 15, 1980. Decided May 7, 1980.

Guy J. Notte, for appellant.

J. W. Morgan, District Attorney, Michael Walker, Assistant District Attorney, for appellee.

BANKE, Judge.

Appellant was convicted of child abandonment in 1974 and now appeals the denial of his motion for an out-of-time appeal. At the hearing on his motion, appellant testified that his attorney notified the court at the time of his conviction that an appeal would be filed and directed him to "be in my office Monday morning." Appellant testified that he was aware of his right to appeal and the time allowed for that action to be taken. He further testified, as did his wife, that efforts to contact his trial attorney and to have other attorneys take up the cause were fruitless. The trial attorney testified that he advised appellant of his right to appeal but that it would be futile to do so. He denied any agreement to pursue an appeal. Held:

1. The authorities relied upon by appellant in support of his contention that he was entitled to an out-of-time appeal are inapposite. It is true that where the right of appeal is lost because of counsel's conduct, granting of an out-of-time appeal is appropriate. See McAuliffe v. Rutledge, 231 Ga. 745 (204 SE2d 141) (1974). The result is the same where the client is not informed by counsel of his right to appeal. Kreps v. Gray, 234 Ga. 745 (218 SE2d 1) (1975). However, the testimony before the trial court in this case shows without dispute that appellant was aware of his right to appeal and the attendant time limits. A further circumstance in support of the court's judgment in this case is the fact that more than five years intervened between the date of the conviction and the filing of the motion appealed from.

2. Appellant seeks to raise before this court the adequacy of the representation afforded him at trial. That issue is moot in view of our decision in Division 1.

3. Appellant contends that the trial court did not "make findings of fact or conclusions of law" in accordance with the Civil Practice Act, Code Ann. § 81A-152. The Civil Practice Act has no application in this criminal appeal.

Judgment affirmed. McMurray, P. J., and Smith, J., concur.