Foster v. State

McMurray, Presiding Judge.

Defendant was indicted for the offense of armed robbery. He was convicted of robbery by intimidation and sentenced to serve a term of four years. Defendant then filed a motion for new trial which was heard and denied. Defendant appeals. Held:

The defendant filed, in this court, a motion for extension of time, which we treated as one with reference to his enumeration of error and brief in order that he might obtain the record and materials as he was proceeding pro se in this court. He also filed a motion for writ of habeas corpus and motion for bond. In consideration thereof he was granted an extension of time, whereupon he filed a motion to forward his request for writ of habeas corpus and appeal to the Supreme Court of Georgia and for a rehearing on the extension of time. The case was then transferred to the Supreme Court for its consideration. Defendant’s motion was denied by the Supreme Court, and the record was then transferred back to this court.

On December 4, 1981, having received neither the brief nor enumeration of error, the defendant was ordered to file same in this case no later than 4:30 p.m., December 9,1981, or the appeal would be subject to dismissal. It appears that neither an enumeration of errors nor brief has been filed in this case in accordance with Rule 14 (Code Ann. § 24-3614) of this court after due notice by our order dated December 4,1981, directing that an enumeration of errors and brief be filed not later than 4:30 p.m., December 9, 1981, or the appeal would be subject to dismissal under Rule 27 (a) (Code Ann. § 24-3627 (a)) and Rule 14 of this court.

The district attorney, as opposing counsel, has also filed a motion to dismiss setting forth the lengthy appellate proceeding of the defendant who has obtained considerable delay with this appeal with neither a brief nor enumeration of errors ever having been filed. Consequently, opposing counsel urges that under Brown v. State, 236 Ga. 333, 334 (223 SE2d 642), because the defendant has failed to pursue applicable statutory requirements his request for appeal should be forfeited and his appeal dismissed.

Nevertheless, we have examined the record and transcript and found no errors prejudicial to the defendant’s rights. A rational trier of fact (the jury in the case sub judice) could reasonably have found from the evidence adduced at trial proof of the guilt of the defendant beyond a reasonable doubt of the offense of robbery by intimidation. Drake v. State, 245 Ga. 798, 799 (267 SE2d 237); Sanders v. State, 246 Ga. 42 (1) (268 SE2d 628).

Decided February 12, 1982 Rehearing denied March 16, 1982 Clarence R. Foster, pro se. Lewis R. Slaton, District Attorney, Joseph J. Drolet, H. Allen Moye, Assistant District Attorneys, for appellee.

Judgment affirmed.

Banke and Birdsong, JJ., concur.