Summary
In Cunningham v. State, 232 Ga. 416 (207 S.E.2d 48), the Supreme Court recently upheld the ruling of Bonzheim v. Bonzheim, 227 Ga. 478, supra, although finding it inapplicable in a criminal case.
Summary of this case from Laurens County v. DixonOpinion
28906.
SUBMITTED MAY 24, 1974.
DECIDED JUNE 18, 1974.
Certiorari to the Court of Appeals of Georgia — 131 Ga. App. 133 ( 205 S.E.2d 899).
Thomas H. Harper, Jr., for appellant.
Lewis R. Slaton, District Attorney, for appellee.
The Court of Appeals dismissed this criminal appeal because the judgment had not been entered when the appeal was filed. The Court of Appeals relied upon Bonzheim v. Bonzheim, 227 Ga. 478 ( 181 S.E.2d 363) in which this court held that a judgment could not be considered appealable until it was actually entered.
The applicant, however, contends that she has been denied due process and equal protection of law under the Federal and Georgia Constitutions (Code § 1-815, Code Ann. §§ 2-102, 2-103) because of a procedural mistake of her attorney.
In McAuliffe v. Rutledge, 231 Ga. 1, 3 ( 200 S.E.2d 100), this court held that an indigent was entitled to effective assistance of counsel on appeal and that an abortive attempt to appeal a criminal conviction was a denial of effective assistance of counsel.
While there is no per se constitutional right to appeal, the Supreme Court of the United States has held that once a state establishes an appellate forum it must assure access to it upon terms and conditions equally applicable and available to all. North Carolina v. Pearce, 395 U.S. 711 ( 89 S.C. 2072, 23 L.Ed.2d 656); Griffin v. Illinois, 351 U.S. 12 ( 76 S.C. 585, 100 LE 891, 55 ALR2d 1055); Douglas v. California, 372 U.S. 353 ( 83 S.C. 814, 9 L.Ed.2d 811); Hancock v. Board of Tax Assessors of Harris County, 226 Ga. 570 ( 176 S.E.2d 102).
The applicant in this case is not an indigent but the dismissal of her appeal because of the abortive attempt made in this case denies her due process and equal protection of the laws.
Under these circumstances in a criminal case, the rule announced in Bonzheim v. Bonzheim, 227 Ga. 478, supra, cannot be applied.
Judgment reversed. All the Justices concur.