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FILING THE NOTICE OF APPEAL BEFORE THE WRITTEN ORDER?

Posted by Ben Sessions | May 27, 2016 | 0 Comments

What happens when we file a notice of appeal before the written order denying the motion is entered by the trial court?

Whether a notice of appeal is premature and not valid if it is filed prior to the entry of a written order is really important. If the notice of appeal is ineffective to provide the appellate with jurisdiction is a crucial question.

Fortunately, this issue has been resolved clearly by the appellate courts:

In the view of premature notices that we have taken since Gillen, the notice must clearly indicate the order from which it seeks relief; otherwise prejudice to the appellee may result. Gillen, supra. The notice of appeal in Staton, supra at 316, 464 S.E.2d 888, did not “minimally suffice as a timely notice of appeal inasmuch as it contained no reference to the … judgment from which the appeal was filed. See OCGA § 5–6–37.” The cases presented here, like many criminal cases, pose no problem in this regard. There is a familiar pattern: a hearing on the motion for new trial is held, the court announces it is denied, and the appellant promptly files a notice of appeal. The only problem is that the appellant is more prompt than the court, and the order denying the motion is entered after the notice. There is no prejudice to the State; the notice makes it clear what is being appealed. The motion is still in the breast of the court until the order is entered, and if the court decides to grant the motion, the notice from a nonexistent denial is void.

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After reviewing various methods by which the appellate courts of this state have reviewed the merits of procedurally deficient criminal appeals, Rowland determined that appeals with late-filed notices could be properly dismissed, as the availability of an “out-of-time appeal” sufficiently protected a defendant's constitutional rights. Rowland, supra at 875(2), 452 S.E.2d 756. The opinion does not mention premature notices of appeal, does not mention, much less overrule, Gillen, and does not refer to the treatment the Supreme Court itself and this Court have given to premature notices since Gillen.

Good reason answers why this is so. There is a vast difference between a notice which is filed beyond the time allowed by law, and a notice which is filed before it must be. The late notice fails to keep the case extant and to shift jurisdiction to an appellate court. McKinney v. State, 187 Ga.App. 702, 371 S.E.2d 196 (1988). The appeal opportunity dies with the passage of the prescribed period of time, and appellate jurisdiction never attaches. On the other hand, the early notice is dormant in its effect until the ruling it complains of is entered of record. It then effects appellate jurisdiction instantly. It is not “untimely,” which is the concern addressed in Rowland. The law sets a maximum time for filing a notice of appeal so as to advance the case to finality without undue delay. That is the primary purpose of the 30–day limit in OCGA § 5–6–38(a); it serves to assure speedy justice, one of the objectives of the Appellate Practice Act. See Chambliss v. Hall, 113 Ga.App. 96(1), 98, 147 S.E.2d 334 (1966).

It would be ironic as well as illogical to relegate defendant to the cumbersome out-of-time appeal procedure which elongates a case's life just because the time limitation for direct appeals, and its purpose, were met **321 by alert counsel's early physical filing of the notice rather than by its physical filing on the day the court's order was actually entered. Its anticipatory nature does not deprive it of fulfilling the statutory time requirement.

Livingston v. State, 221 Ga. App. 563, 565-66, 472 S.E.2d 317, 320-21 (1996).

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Ben Sessions

I work to provide exceptional service, attention, and results to each of my clients. Most of clients come to me because they are in a completely overwhelming situation. They need someone that will do more than address their legal problems.

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