Summary
criticizing the defense lawyer responsible for the 10–year delay in transmitting the record relating to his client’s 10–year probation sentence, resulting in the appeal being dismissed as moot
Summary of this case from Owens v. StateOpinion
No. A16A0191.
02-11-2016
JAYKO v. The STATE.
Lee William Fitzpatrick, Kennesaw, for Appellant. Cliff Head, Shannon Glover Wallace, for Appellee.
Lee William Fitzpatrick, Kennesaw, for Appellant.
Cliff Head, Shannon Glover Wallace, for Appellee.
Opinion
PETERSON, Judge. Kara Jayko appeals a condition imposed on her sentence of ten years' probation. She argues that the sentencing court's prohibition on her ability to live with someone of the opposite sex for the duration of her probation violates her constitutional rights. But because it took ten years for her appeal to arrive at this Court, Jayko has already completed her sentence and is no longer subject to the challenged condition. Accordingly, she cannot benefit from any remedy we could offer on appeal and we must grant the State's motion to dismiss her appeal as moot.
In 2005, Jayko pleaded guilty to three counts of forgery and one count of false statements, and pleaded nolo contendere to two lesser charges. She was sentenced to ten years' probation for the forgery counts and lesser terms running concurrently for the others. In her brief, Jayko asserts that during the sentencing hearing, the judge orally imposed as a condition of her probation a prohibition on living with someone of the opposite sex to whom she was neither married nor related.
This condition does not appear in the written sentencing order, and the record does not include a transcript of any sentencing hearing. Accordingly, the condition may well have not even applied. See OCGA § 42–8–34.1(a)(2) (special conditions of probation must be “identified in writing in the sentence”); Harvey v. Meadows, 280 Ga. 166, 169–70(3), 626 S.E.2d 92 (2006) (same).
Jayko filed a notice of appeal on October 28, 2005. The clerk of superior court for Cherokee County transmitted the record on appeal to this Court on September 10, 2015. Jayko's sentence expired October 5, 2015. On appeal, Jayko challenges only the condition of her sentence prohibiting her from living with someone of the opposite sex.
Because Jayko has already completed her sentence and is no longer subject to the condition of probation she challenges, the State moved to dismiss the appeal as moot. Jayko does not dispute that she no longer requires a remedy, but argues that the precedent of this Court allows us to decide even moot cases when the issue to be decided is important.
Jayko misreads our precedent and the precedent of the Supreme Court of Georgia, which mandates dismissal of moot cases absent an applicable exception. Mootness is “a jurisdictional matter.” Collins v. Lombard Corp., 270 Ga. 120, 122–23(3), 508 S.E.2d 653 (1998). When the remedy sought in litigation no longer benefits the party seeking it, the case is moot and “must be dismissed.” Roberts v. Deal, 290 Ga. 705, 707(1), 723 S.E.2d 901 (2012); see also Baca v. Baca, 256 Ga.App. 514, 515–16(1), 568 S.E.2d 746 (2002) (“mootness is a mandatory ground for dismissal”).
Our precedent does not recognize a mootness exception in cases like this. Jayko points to Medina v. State, in which we exercised jurisdiction to hear a challenge to a conviction where the sentence had already expired. 312 Ga.App. 399, 400 n. 3, 718 S.E.2d 323 (2011). And on first blush, that precedent appears to frame dismissal of moot cases as discretionary. Medina, 312 Ga.App. at 400 n. 3, 718 S.E.2d 323 (characterizing Georgia Supreme Court decision in a parenthetical as granting courts “discretion to address the merits of cases rendered moot by the defendant's service of his sentence”); accord Baker v. State, 240 Ga. 431, 431–32, 241 S.E.2d 187 (1978) (dismissing as moot challenge to conviction and noting that “[a]lthough a court may exercise its discretion to decide a criminal case even after the sentence has been served, it is not bound to do so.”) (internal citations omitted). But challenges to convictions brought after the expiration of a sentence may still afford meaningful relief for an appellant, while challenges brought only to sentence conditions cannot.
It has long been our precedent that we have jurisdiction to decide challenges to convictions brought by defendants who have completed their sentences, so that they “may seek to redress legal grievances flowing from allegedly void convictions and thereby hope to escape lifelong adverse collateral consequences.” Chaplin v. State, 141 Ga.App. 788, 790(1), 234 S.E.2d 330 (1977) (quoting Parris v. State, 232 Ga. 687, 691, 208 S.E.2d 493 (1974)). In other words, the appellant may still receive a remedy (relief from “lifelong adverse collateral consequences”), and thus those cases are not moot. Rodriguez–Martinez v. State, 243 Ga.App. 409, 410(1), 533 S.E.2d 443 (2000) (“On account of these collateral consequences, the case is not moot.”) (citation omitted).
Our decision in Medina was simply a direct application of that precedent in a case involving a challenge to a conviction. Medina, 312 Ga.App. at 400 n. 3, 718 S.E.2d 323 (following Chaplin and characterizing it in a parenthetical as granting courts “discretion to address the merits of cases rendered moot by the defendant's service of his sentence”). And because Medina involved a challenge to a conviction, its holding is necessarily limited to that context. Although it is the province of the judiciary to say what the law is, Rutter v. Rutter, 316 Ga.App. 894, 896 (1) n. 4, 730 S.E.2d 626 (2012) (Blackwell, J.), rev'd on other grounds, 294 Ga. 1, 749 S.E.2d 657 (2013), the extent of that province is limited by the facts of the case before the court. Mootness is jurisdictional, we lack discretion to hear a moot case, and appeals are moot when the appellant will not benefit from any remedy sought on appeal.
Jayko's only challenge is to a sentence condition to which she is no longer subject. Because she is no longer subject to that condition, she would no longer benefit from relief from that condition; any adverse collateral consequences she might still experience flow not from the sentence condition but from her conviction, which she does not challenge here. Accordingly, her appeal is moot and must be dismissed. Cf. Miller v. State, 288 Ga. 153, 154, 702 S.E.2d 137 (2010) (vacating this Court's opinion affirming partial revocation of probation and concluding that the challenge to probation revocation was moot when the revocation was suspended and appellant had not shown adverse collateral consequences on the record).
Before dismissing the appeal, however, we must address the ten-year delay in the transmission of the record to this Court. This appeal is part of a number of cases recently transmitted to this Court by the Cherokee County Superior Court Clerk's Office in which court costs had remained unpaid. Before a case is transmitted to this Court, an appellant must pay the costs to prepare the record or file an affidavit of indigence certifying that he or she is unable to pay such costs. See OCGA § 15–6–80 (“In all cases certified to the appellate courts, the costs for preparing the transcript of the record shall be paid by the appellant to the clerk before the same is transmitted unless the judge presiding over the case being appealed approves an affidavit submitted to the judge by the appellant certifying that the appellant is unable to pay such costs[.]”) (emphasis added); see also OCGA § 9–15–2(a)(1).
In this case, trial counsel filed the notice of appeal on Jayko's behalf, but did not attach an affidavit of her indigence, causing the delay in the transmission of the record to this Court. That delay effectively denied Jayko of her opportunity to appeal the condition she asserts was imposed on her sentence. Indeed, we might well have closely scrutinized the condition she challenges if we had the power to do so. But we do not. Her appeal is now moot, and we must dismiss it.
Jayko's counsel on appeal (also her counsel at the trial level over ten years ago), Lee Fitzpatrick, notes that the circuit defender's office in Cherokee County had a policy requiring defendants to request new counsel on appeal, and accordingly he did not follow Jayko's case once he filed the notice of appeal. Mr. Fitzpatrick does not state that he informed Jayko of the circuit defender's policy requiring her to seek new counsel on appeal, nor does he offer any reason why he did not obtain an affidavit of indigence from Jayko. Moreover, the record indicates that the order appointing Mr. Fitzpatrick specified that he would “remain appointed until relieved by order of the Superior Court and thereafter unless and until relieved by order of the Appellate Court.” [R–44] The record contains no such order relieving him. We take this opportunity to remind the bar that, until appointed counsel is relieved of the appointment by order of a court, appointed counsel has a duty to continue representing a client, keep the client apprised about the status of the case, and fully inform the client of his or her appellate rights and requirements to pursue an appeal, including a client's obligations to perfect the record.
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Appeal dismissed.
PHIPPS, P.J., and DILLARD, J., concur.