Summary
In Shouse v. State, 189 Ga.App. 531, 376 S.E.2d 911 (1988), this Court explained that, while the failure to notify under OCGA § 15-6-21(c) would not extend the time for filing a notice of appeal, it could furnish a basis for the grant of an out-of-time appeal in that the defendant was deprived of his right to appeal, "which is of constitutional dimensions."
Summary of this case from Graham v. StateOpinion
77355.
DECIDED DECEMBER 2, 1988.
Appeal dismissal. Clayton Superior Court. Before Judge Kilpatrick.
Harry Shouse, pro se. Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellee.
Defendant's notice of appeal, taken from a judgment entered on October 20, 1987, was filed on December 9. This of course, was not timely, OCGA § 5-6-38 (a). Upon filing, defendant contended below that he did not learn of the judgment until December 4, 1987, and requested permission to appeal out of time.
Under OCGA § 15-6-21 (c) the trial court was required to notify the attorney of the losing party of its decision on the motion. Pro se defendant should have been notified. If he was not, the failure would not extend the time for filing a notice of appeal. Robinson v. Kemp Motor Sales, 185 Ga. App. 492, 493 ( 364 S.E.2d 623) (1988). However, it could furnish a basis for the grant of an out-of-time appeal in that he was deprived of his right to appeal, which is of constitutional dimensions. Mobley v. State, 162 Ga. App. 23 (1) ( 288 S.E.2d 702) (1982); Lay v. State, 242 Ga. 225, fn. 1 ( 248 S.E.2d 611) (1978); Cunningham v. State, 232 Ga. 416 ( 207 S.E.2d 48) (1974). See dissent in Willis v. State, 186 Ga. App. 197, 197 ( 366 S.E.2d 778) (1978), approved by the Supreme Court in its order in Willis v. State (case no. 45592, issued Oct. 19, 1988).
The issue is whether defendant received notice and delayed taking action, in which case he has forfeited his right to appeal, or whether there was no timely notice, in which case either the judgment should be set aside and a new judgment entered from which a timely appeal might be taken or an out-of-time appeal should be considered. See Cambron v. Canal Ins. Co., 246 Ga. 147, 148 (1) ( 269 S.E.2d 426) (1980). See also dissent in Crawford v. Kroger Co., 183 Ga. App. 836, 837 ( 360 S.E.2d 274) (1987).
In any event, the docketing of the case in this Court is premature because the request for an out-of-time appeal has not been ruled upon by the trial court. The appeal is therefore dismissed and the case remanded for a determination whether defendant was notified as required under OCGA § 15-6-21 (c) and for such other action as deemed appropriate.
Appeal dismissed and case remanded. Birdsong, C. J., and Banke, P. J., concur.