Cunningham v. State
Cunningham v. State
Opinion of the Court
The defendant was convicted for violation of the Georgia Drug Abuse Control Act. Appeal was taken from the order overruling her motion to suppress and the judgment of conviction and sentence. The appeal was filed on August 20, 1973. The order and the judgment were both entered on August 21,1973. Under the holding of Bonzheim v. Bonzheim, 227 Ga. 478 (181 SE2d 363): "A judgment cannot be considered appealable until it is actually entered; therefore, where the notice of appeal is filed before the entry of judgment, the appeal must be dismissed.
Appeal dismissed.
Concurring Opinion
concurring.
Having received from my colleagues freedom of expression, a privilege cherished because of a personal penchant
"It is the duty of the court on its own motion to inquire into its jurisdiction. [Cit.] ” Hobbs v. New England Ins. Co., 93 Ga. App. 687 (92 SE2d 636). This mandate is embodied in Rule 19 of this court which is codified as § 24-3619 (d): "[Wjhenever it appears to the court that it has no jurisdiction of a pending appeal, it will be dismissed . . . whenever and however its lack of jurisdiction may appear.”
In fulfillment of that duty, examination of the record disclosed to my brother, Judge Quillian, to whom this case was assigned under the strict numerical rotation system of this court, that the trial judge sitting without a jury entered his finding of guilty by written order dated August 20. The next entry in the record is dated August 21, that being the trial judge’s formal written order denying a motion to suppress. The following page is the judgment sentencing defendant to two years which is dated August 20. That page shows the filing in the clerk’s office to be August 21. We have italicized the foregoing sentence because it marks the fatal flaw in the appeal.
Whether the court uses the word "entered” or "entry,” the point which must be remembered is that this refers to the filing in the clerk’s office of the signed judgment. This is made plain in the latest Supreme Court opinion, that being Turner v. Harper, 231 Ga. 175,176 (200 SE2d 748), where that tribunal says "Code Ann. § 6-903 provides that the filing with the clerk of a judgment, signed by the judge, constitutes the 'entry’ of the judgment within the meaning of the Appellate Practice Act.”
In short, it is incumbent upon the attorney to follow up the signing of a judgment by making certain that it is filed with the clerk of court and to see that this official or his authorized deputy affixes the date of such entry accompanied by his signature.
On a personal note, I acknowledge my wish that I was blessed with the economy of expression possessed by my brethren. I would thereby be enabled to avoid such blunders as result from becoming enmeshed in my prolixity. In dealing with the issue in the instant case as to the right of the officers to make use of their sense of smell upon detecting the distinct and pungent aroma existing with wet marijuana (a truckload of approximately 1300 pounds), which odor is recognizable by narcotics agents, the district attorney’s brief takes issue with a single sentence contained in this writer’s opinion in Brewer v. State, 129 Ga. App. 118 (199 SE2d
Although this writer may have been deficient in dealing with the sense of smell, he can now testify as to the taste of "eating crow”: it is both unpalatable and indigestible.
"All acknowledge the art of alliteration is of ancient ancestry; but propensity for this peculiar phrasing is the predilection of particular persons and plenty of people profess positive prejudice against the practice.” Personal Letter from Savannah U. S. Court Judge A. A. Lawrence.
Reference
- Full Case Name
- Cunningham v. the State
- Cited By
- 9 cases
- Status
- Published