DOVER v. THE STATE

Court of Appeals of Georgia1999-04-28No. A99A0354

237 Ga. App. 797516 S.E.2d 839

Summary · law.co

Holding. The trial court's denial of Dover's motion for an out-of-time appeal was affirmed because Dover failed to establish the required good and sufficient reason by specifying the issues he would raise on appeal and showing they could be resolved from facts in the appellate record.

Herman Mitchell Dover pleaded guilty to statutory rape in 1997 and filed a motion to withdraw his guilty plea, which was denied in January 1998. When Dover failed to file a timely notice of appeal from that denial, his appeal was dismissed. He subsequently sought permission to file an out-of-time appeal, arguing that his attorney's inadequate performance or neglect caused the delay. However, Dover's motion for out-of-time appeal did not identify what legal issues he would raise or demonstrate that those issues could be resolved based on facts already in the appellate record.

The trial court denied Dover's motion relying on precedent establishing that a movant for out-of-time appeal must demonstrate good cause and must specify the questions to be raised and show they are resolvable from the record. Dover attempted to supply this missing information only in his appellate brief, after the trial court had already ruled. The appellate court found no abuse of discretion in the trial court's denial because Dover's pleadings supporting the out-of-time appeal motion failed to meet the required showing, and appellants cannot cure deficiencies by adding information in their appellate briefs.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Requirements for obtaining an out-of-time appeal
Burden of proof for movant seeking out-of-time appeal
Whether trial court abused discretion in denying out-of-time appeal motion
Prohibition on supplementing the record with appellate brief statements

Procedural posture

Dover appealed the trial court's denial of his motion to file an out-of-time appeal from the denial of his guilty plea withdrawal motion.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Barnes, Judge.

Herman Mitchell Dover appeals the denial of his motion for an out-of-time appeal. After Dover pleaded guilty to statutory rape in 1997, he filed a motion to withdraw his guilty plea in July 1997. Although this motion was denied on January 9, 1998, Dover did not file a notice of appeal from the denial of this motion until February 11, 1998. Consequently, this appeal was dismissed by this Court because the notice of appeal was not timely filed.

Subsequently, Dover filed a motion seeking permission for an out-of-time appeal of his motion to withdraw his guilty plea. Dover asserted that an out-of-time appeal should be granted because his failure to pursue his appeal in a timely manner was either the result of excusable neglect on the part of his attorney or the ineffective assistance of his counsel in filing the untimely notice of appeal. Nothing Dover presented in support of his motion for an out-of-time appeal, however, provided any information regarding the basis for seeking the withdrawal of his guilty plea. After his motion was denied by the trial court, Dover filed this appeal.

The trial court’s order denying the motion stated that the case was controlled by our Supreme Court’s recent decision in Wheeler v. State, 269 Ga. 547, 548 (499 SE2d 629) (1998):

Decided April 28,1999.

Gary P. Bunch, for appellant.

N. Stanley Gunter, District Attorney, for appellee.

As the movant for an out-of-time appeal, appellant had to establish a good and sufficient reason which entitled him to an out-of-time appeal. Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996). To meet this burden of proof, appellant had to set forth the questions he would raise should the appeal be granted, and show that the questions could be resolved by facts appearing in the appellate record. Id. Appellant has alleged only that his attorney’s inadequate performance was the reason why no timely appeal was filed; appellant has not set forth the questions he would raise in an out-of-time appeal and that the questions could be resolved by facts in the record.

Therefore, the trial court found that Dover’s motion failed to satisfy his burden under Wheeler v. State. We agree.

The denial of a motion for an out-of-time appeal is a matter within the discretion of the trial court, and the trial court’s decision will not be reversed absent abuse of such discretion. See Hightower v. State, 192 Ga. App. 836 (386 SE2d 716) (1989). We find no abuse of discretion in this case. Nothing in Dover’s pleadings regarding his out-of-time appeal so much as mentioned the issues he would raise if his out-of-time appeal were granted, or whether the issues could be resolved by facts appearing in the appellate record. See Wheeler, supra, 269 Ga. at 548. Further, even though Dover has attempted to correct this deficiency by reciting the required information in his appellate brief, a party cannot supplement the record by statements in his appellate brief. Williams v. State, 193 Ga. App. 677, 678 (388 SE2d 893) (1989).

Judgment affirmed.

Blackburn, P. J, and Senior Appellate Judge Harold R. Banke concur.