Sharp v. State

Benham, Judge,

concurring specially.

I concur fully with Divisions 2 through 5 and with Division 1 of the majority opinion insofar as it holds that despite appellant’s premature filing of her notice of appeal, we should review the case on its merits in accordance with Gillen v. Bostick, 234 Ga. 308 (1) (215 SE2d 676) (1975); Steele v. Cincinnati Ins. Co., 252 Ga. 58 (311 SE2d 470) (1984); and LeGallienne v. State, 180 Ga. App. 108 (3) (348 SE2d 471) (1986). However, to maintain the consistency of our opinions with regard to this issue, I would overrule Boothe v. State, 178 Ga. App. 22 (342 SE2d 9) (1986), in which this court dismissed a prematurely filed appeal based on the reasoning overruled in Gillen v. Bostick, supra. The approach of reviewing criminal appeals on the merits whenever possible is also in keeping with the spirit of Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985).

I am authorized to state that Presiding Judge McMurray and Judge Pope join in this special concurrence.