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WOODY v. STATE10/30/1997
Karen Linn Woody was accused in Clayton County State Court of driving under the influence, having no insurance, having no driver's license, red light violation, seat belt violation, and fleeing. She was also charged with obstructing an officer. Appellant was arrested on January 10, 1996 and was in jail from that time. Accusations were filed on January 23, 1996. The next day, January 24, appellant was taken from jail to court where, without an attorney, she pled guilty and was sentenced.
After sentencing, on January 30, counsel was appointed for her. The next day, February 1, 1996, appointed counsel filed a discovery motion, request for jury trial, and other pleadings indicating he did not know Woody had already pled guilty. He was soon advised, for on February 9 he filed a motion styled "motion for new trial," which sought to withdraw Woody's guilty pleas, arranged a hearing date, and filed a request for a court reporter. However, there is no transcript of that hearing. The trial court denied permission to appellant to withdraw her pleas.
Counsel avers in his statement of facts, which is not denied by the State, that on realizing there were no transcripts, he amended the Notice of Appeal to exclude transcripts. Counsel seeks dismissal
of the appeal as frivolous and seeks permission to withdraw; but counsel nevertheless enumerates as error the trial court's ruling that the State proved the guilty pleas were free and voluntary and that there was a factual basis for the pleas. Held:
1. Counsel's motion to withdraw on grounds that he has examined the basis for appeal and finds it frivolous, is in the nature of a motion under Anders v. California, 386 U.S. 738 (87 SC 1396, 18 L.Ed.2d 493). This court has not permitted Anders motions since 1988. See Fields v. State, 189 Ga. App. 532, 533 (376 S.E.2d 912), where we followed Huguley v. State, 253 Ga. 709, 710 (324 S.E.2d 729) which decried being forced to "[review] the entire record and transcript with very little assistance from counsel who is in a far better position to perceive error than is an appellate court looking at a cold record," and we therefore held and announced that "the Anders motion will no longer be entertained in this court."
In Fields and later cases when an appellant's attorney avers his criminal appeal is frivolous, we have reviewed each record for substantive error and we have determined whether the evidence supports the verdict under Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 L.Ed.2d 560). See Scott v. State, 193 Ga. App. 577 (388 S.E.2d 416). This method of providing due process is far from satisfactory, for by its nature a review with "very little assistance" from counsel tends to deprive the criminal defendant of effective assistance of counsel.
In Rowland v. State, 264 Ga. 872 (452 S.E.2d 756) the Supreme Court attempted to provide a means for uniform treatment of procedurally deficient appeals in criminal cases. Rowland does not mention cases where counsel makes an Anders motion but its analysis of "sua sponte appellate review" (id. at 874) is pertinent here. The court in Huguley said the Anders motion is "unduly burdensome in that it tends to force the court to assume the role of counsel for the appellant." Any sua sponte appellate review in cases of "incomplete appellate filings" is flawed, for it replaces the defendant's or his attorney's scrutiny of the trial record with an appellate court's cursory review of the record for clear and grave injustice. Id., quoting Whittle v. State, 210 Ga. App. 841, 842 (437 S.E.2d 842) (dissent). It may even frustrate future habeas corpus review. Rowlands, supra at 874.
Rowland involved an untimely filing of notic
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