Summary
In Day, the prisoner's civil suit was filed prior to the effective date of the Prisoner Litigation Reform Act of 1996, but the final order at issue and the notice of appeal were both filed after the Act became effective.
Summary of this case from Murphy v. MurphyOpinion
S97A1142.
DECIDED OCTOBER 14, 1997
Prisoner suits; discretionary appeal application. Tattnall Superior Court. Before Judge Russell.
Roger Day, pro se. Thurbert E. Baker, Attorney General, Stacy L. Ferris-Smith, Assistant Attorney General, for appellee.
When Day filed the civil suit involved here in the trial court on June 19, 1995, he was in prison. The final order was filed on February 14, 1997, and the notice of appeal was filed March 7, 1997. The Prisoner Litigation Reform Act of 1996, OCGA § 42-12-1 et seq., has an effective date of April 2, 1996. OCGA § 42-12-8 requires appeals in all prisoner suits proceed by application for discretionary appeal in accordance with OCGA § 5-6-35. There was no application in this case.
Under the principle that this court is bound to examine its jurisdiction ( Collins v. AT T, 265 Ga. 37 ( 456 S.E.2d 50) (1995)), we must determine what effect OCGA § 42-12-8 might have on this appeal. We have already applied the statute to the appeal in a case filed in the trial court after the effective date of the statute ( Jones v. Townsend, 267 Ga. 489 ( 480 S.E.2d 24) (1997)), but have not considered the statute's effect on a case filed in the trial court before the effective date, in which there is no appealable judgment entered until after the effective date. The Court of Appeals had occasion to consider such circumstances in Crimminger v. Habif, 174 Ga. App. 440 ( 330 S.E.2d 164) (1985), where a suit filed in 1982 culminated in a verdict in September 1984 and a judgment in October 1984, both after the July 1984 effective date of OCGA § 5-6-35. It held there that there was no right to appeal until judgment was entered and that the law regarding appellate procedure in effect at that time governed. That holding is in accord with the long-standing rule regarding changes in procedural law. "The rule is that there are no vested rights in any course of procedure. [Cits.] . . . [T]he right to a particular type of appeal is not a vested right. [Cit.]" Holloman v. State, 203 Ga. App. 476, 478 ( 416 S.E.2d 839) (1992).
Those principles apply equally to the present circumstances. Day's right to appeal the judgment below did not accrue until judgment was entered, and by that time a discretionary appeal application was required by OCGA § 42-12-8. "Failure to file an application when one is necessary requires that the appeal be dismissed." Prison Health Svcs. v. Dept. of Administrative Svcs., 265 Ga. 810 (1) ( 462 S.E.2d 601) (1995). Accordingly, Day's appeal must be dismissed.