Evans v. State, 402 S.E.2d 131 (Ga. Ct. App. 1991). · Go Syfert
Evans v. State, 402 S.E.2d 131 (Ga. Ct. App. 1991). Cases Citing This Book View Copy Cite
“f appellant did not receive adequate information concerning his right to obtain another appointed attorney should trial counsel not wish to represent him on appeal, he is . . . entitled to an out of time appeal”
32 citation events (7 in the last 25 years) across 2 distinct courts.
Strongest positive: Hill v. State (gactapp, 2007-05-09)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 10 distinct citers.
examined Cited as authority (quoted) Hill v. State (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2007 · quote attribution · 1 verbatim quote · confidence low
f appellant did not receive adequate information concerning his right to obtain another appointed attorney should trial counsel not wish to represent him on appeal, he is . . . entitled to an out of time appeal
discussed Cited as authority (rule) Carroll v. Krystal Co.
Ga. Ct. App. · 2010 · confidence medium
Agency v. Strauch, 198 Ga. App. 537, 536 (3) ( 402 SE2d 129 ) (1991). 11 Lanier Home Center v. Underwood, 252 Ga. App. 745, 749 (5) ( 557 SE2d 76 ) (2001). 12 Capp v. Carlito’s Mexican Bar & Grill No. 1, 288 Ga. App. 779, 782 (1) ( 655 SE2d 232 ) (2007). 13 We note that while there appears to be no evidence in the record of Krystal’s superior knowledge of the alleged hazard, Krystal did not move for summary judgment on this ground.
cited Cited as authority (rule) Barnes v. State
Ga. Ct. App. · 2000 · confidence medium
Evans v. State, 198 Ga. App. 537, 538 ( 402 SE2d 131 ) (1991).
cited Cited as authority (rule) Grovenstein v. State
Ga. Ct. App. · 1998 · confidence medium
Cannon v. State, 175 Ga. App. 741 ( 334 SE2d 342 ) (1985); Evans v. State, 198 Ga. App. 537, 538 ( 402 SE2d 131 ) (1991).
cited Cited as authority (rule) Morrow v. State
Ga. · 1995 · confidence medium
Henry, 235 Ga. at 198 ; Evans v. State, 198 Ga. App. 537, 538 ( 402 SE2d 131 ) (1991); Cannon, 175 Ga. App. at 742 .
discussed Cited as authority (rule) Thornton v. State
Ga. Ct. App. · 1995 · confidence medium
Stines, A. Scott Gunn, Assistant District Attorneys, for appellee. “ ‘Our courts have . . . permitted out of time appeals if the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights. [Cits.] An out of time appeal, however, is not authorized if the delay was attributable to the appellant’s conduct, either alone or in concert with counsel. [Cits.]’ Evans v. State, 198 Ga. App. 537, 538 ( 402 SE2d 131 ).” Hasty v. State, 213 Ga. App. 731, 732 ( 445 SE2d 836 ) (1994).
cited Cited as authority (rule) Hasty v. State
Ga. Ct. App. · 1994 · confidence medium
Henry v. Hopper, 235 Ga. 196, 197-198 ( 219 SE2d 119 ) (1975); Cannon, supra at 742 .” Evans v. State, 198 Ga. App. 537, 538 ( 402 SE2d 131 ).
discussed Cited as authority (rule) Franz v. State
Ga. Ct. App. · 1993 · confidence medium
“Our courts have long recognized the right to effective assistance of counsel on appeal from a criminal conviction, and have permitted out-of-time appeals if the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights. [Cits.] An out-of-time appeal, however, is not authorized if the delay was attributable to the appellant’s conduct, either alone or in concert with counsel. [Cits.]” Evans v. State, 198 Ga. App. 537, 538 ( 402 SE2d 131 ) (1991).
discussed Cited "see" Grantham v. State (2×)
Ga. · 1997 · signal: see · confidence high
See Evans v. State, 198 Ga. App. 537, 539 ( 402 SE2d 131 ) (1991); Cannon v. State, 175 Ga. App. 741 ( 334 SE2d 342 ) (1985) (Carley, J.).
cited Cited "see" Smith v. State
Ga. · 1996 · signal: see · confidence high
See Evans v. State, supra, 198 Ga.App. at 538, 402 S.E.2d 131 .
Evans
v.
the State
A90A2308.
Court of Appeals of Georgia.
Feb 11, 1991.
402 S.E.2d 131
Jerry Evans, pro se., Spencer Lawton, Jr., District Attorney, for appellee.
Sognier, McMurray, Carley.
Cited by 14 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 87%
Citer courts: Court of Appeals of Georgia (1)
Sognier, Chief Judge.

Jerry Evans was convicted by a Chatham County jury of voluntary manslaughter and four other charges stemming from his possession and use of a handgun during the crime. He appeals from the denial of his motion for an out of time appeal.

The jury’s verdict was rendered on May 17, 1989, and appellant was sentenced on May 26. The transcript of the sentencing hearing[*538] reveals that after sentence was imposed, the trial judge informed appellant, who was represented by appointed counsel, that he had the right to appeal the verdict and to appeal his sentence to the sentence review panel. The court continued, “Let me caution you that you must file the sentence appeal within thirty days from today or, if you appeal the guilty verdict, you must file your sentence appeal within thirty days from receipt by the Clerk of notice that your conviction has been upheld by the appellate courts.” Appellant’s appointed counsel consented to continue representing appellant and to “determine whether or not he wishefd] to appeal either or both of these matters.” Counsel then filed a petition for sentence review on June 13, 1989, and the sentence was affirmed on April 24, 1990. Three weeks later, appellant filed his pro se motion for permission for an out of time appeal, contending appointed counsel had declined to file an appeal from the conviction and judgment and did not explain that appellant could obtain another appointed attorney to maintain the appeal. The trial court denied this motion on June 29, 1990, but did order the preparation of a trial transcript.

Our courts have long recognized the right to effective assistance of counsel on appeal from a criminal conviction, and have permitted out of time appeals if the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights. Bell v. Hopper, 237 Ga. 810 (229 SE2d 658) (1976); Cannon v. State, 175 Ga. App. 741 (334 SE2d 342) (1985). An out of time appeal, however, is not authorized if the delay was attributable to the appellant’s conduct, either alone or in concert with counsel. Henry v. Hopper, 235 Ga. 196, 197-198 (219 SE2d 119) (1975); Cannon, supra at 742. Thus, disposition of appellant’s motion requires a determination whether the ultimate responsibility for the failure to file a timely appeal rested with appellant or with counsel. Cannon, supra.

After a review of the record below, we are- unable to ascertain whether that issue was adequately addressed. No hearing was held on appellant’s motion, and we cannot determine from the available evidence whether the failure to file an appeal was the result of appellant’s inaction. Our difficulty in ascertaining the answer to this question is compounded by the fact that trial counsel did file a sentence review petition and apparently remained as appellant’s counsel until that petition was denied in April 1990. If, as appellant contends, the decision not to file an appeal was made by appointed counsel rather than by appellant, he is entitled to pursue an out of time appeal with appointed counsel. Allen v. Hopper, 234 Ga. 52 (214 SE2d 508) (1975). Further, while the trial judge advised appellant at the sentencing hearing that he had the right to file appeals from both the judgment and the sentence, the court did not expressly state that ap[*539] pellant could obtain substitute counsel if he desired, and appellant contends he was not so advised by trial counsel. If appellant did not receive adequate information concerning his right to obtain another appointed attorney should trial counsel not wish to represent him on appeal, he is likewise entitled to an out of time appeal. See Bell, supra at 811.

Decided February 11, 1991. Jerry Evans, pro se. Spencer Lawton, Jr., District Attorney, for appellee.

Under these circumstances, we must vacate the lower court’s order and remand with direction that a hearing be conducted on appellant’s motion and a new order entered in accordance with this opinion. See Cannon, supra at 743.

Judgment vacated and case remanded with direction.

McMurray, P. J., and Carley, J., concur.