Jermaine Spence v. State ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 24, 2018
The Court of Appeals hereby passes the following order:
A18A1257. SPENCE v. THE STATE.
Jermaine Spence filed a pro se notice of appeal from an order in which the
superior court continued his civil commitment. The State has filed a “motion to
dismiss pro se appeal,” asserting that “Spence has consistently been represented by
the Atlanta Circuit Public Defender,” and that the public defender has not been
released from representing Spence. The State posits that dismissal of the instant
appeal is required under the principle that filings submitted by an individual while
still represented by counsel are unauthorized and without effect.
Spence concedes that he was represented during the proceedings below, but
asserts that he is no longer being represented by any attorney. No order permitting
withdrawal of counsel, however, is found in the record on appeal,1 and Spence’s bare
assertion falls short of demonstrating that he was not represented by counsel on the
1
As lastly amended, the notice of appeal directed the trial court’s clerk:
Please omit and do not include transcripts, and do not transmit the order
being appealed; I have included [as part of the notice of appeal] a
redacted copy. This Notice of Appeal is an Application for
Discretionary Appeal. Therefore the entire docket should not be
transmitted to the [appellate court].
(Emphasis in original.) Consequently, the appellate record contains only Spence’s
notice of appeal, amendments thereto, and the trial court’s order.
date he filed the notice of appeal. See Tolbert v. Toole, 296 Ga. 357, 362 (3) (767
SE2d 24) (2014) (explaining that “formal withdrawal of counsel cannot be
accomplished until after the trial court issues an order permitting the withdrawal,”
and “[u]ntil such an order properly is made and entered, no formal withdrawal can
occur and counsel remains counsel of record”) (citation and punctuation omitted)
(citing USCR 4.3 (1)-(2)). “Because [Spence] cannot show from the record that he
was not represented by counsel on [the date he filed the notice of appeal], he cannot
show that his pro se notice of appeal was legally valid.” Tolbert, 296 at 362-363 (3)
(instructing that an appeal is properly dismissed on the ground that the pro se notice
of appeal is invalid, where the appellant was not actually pro se when he filed it).
Consequently, this appeal is hereby DISMISSED. See White v. State, 302 Ga.
315, 319 (2) (806 SE2d 489) (2017); Tolbert, 296 Ga. at 362-363 (3); Clifton v. State,
346 Ga. App. 406, 407-408 (814 SE2d 441) (2018); Soberanis v. State, 345 Ga. App.
403, 405 (812 SE2d 800) (2018) (dismissing appeal premised upon a pro se notice of
appeal, where “the record d[id] not show that [appellant’s] trial counsel had been
formally permitted to withdraw”).
Accordingly, we also hereby DISMISS AS MOOT the two motions filed in this
Court by Spence: (1) “Motion to amend: Appellant’s primary objection is to the civil
commitment - not to the constitutionality of the statute”; and (2) “Motion to amend:
Appellant’s request for relief Part II.”
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
09/24/2018
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.