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State v. Devore

Court of Appeals of South Carolina

March 23, 2016

The State, Respondent,
Johnie Allen Devore, Jr., Appellant

         Heard November 3, 2015.

          Appeal From Greenville County. D. Garrison Hill, Circuit Court Judge. Appellate Case No. 2013-000883.

         J. Falkner Wilkes, of Greenville, for Appellant.

         Attorney General Alan McCrory Wilson and Assistant Attorney General John Benjamin Aplin, both of Columbia, and Solicitor William Walter Wilkins, III, of Greenville, for Respondent.

         HUFF, A.C.J. WILLIAMS and THOMAS, JJ., concur.


         HUFF, A.C.J.:

         Johnie Allen Devore, Jr. seeks to appeal his conviction for driving under the influence (DUI). We dismiss the appeal for lack of jurisdiction.

         On March 14, 2013, Devore--who was represented by counsel--was convicted of DUI in a jury trial. On March 21, 2013, seven days after his conviction, Devore sent a pro se letter to the trial judge, raising various concerns and asking the trial judge to reconsider the verdict or to declare a mistrial. On April 1, 2013, eighteen days after his conviction, Devore sent a second pro se letter, this time to the circuit solicitor, " Re: Request for Appeal or Re-examination of [his case]." This letter purportedly attached his March 21 letter to the trial judge, and stated he intended the attached letter " to be a request for appeal, review, or consideration of changing [Devore's] trial results to a mistrial." Devore noted his letter to the trial judge had " been ignored and [had] remained unanswered."

         At some point, Devore obtained new counsel--Attorney Wilkes--to represent him. On April 19, 2013, thirty-six days after his conviction, Attorney Wilkes filed an " Amended Notice of Appeal" with this court from Devore's conviction entered March 14, 2013, noting a pro se filing requesting reconsideration had been mailed to the trial judge on March 21, 2013, that no order appeared to have been issued from that filing, and that a second pro se filing was served on the solicitor on April 1, 2013.

         On June 21, 2013, this court remanded the matter for the limited purpose of entertaining Devore's motion. On March 17, 2014, the trial judge held a hearing on Devore's motion for a new trial. Attorney Wilkes began the hearing by giving the background on the matter, informing the trial judge that Devore had, subsequent to his DUI conviction, sent the two documents--one of which was addressed to the trial judge and was " technically a motion for a new trial which was appropriate under the time frame." The trial judge responded, " Now, he was represented by counsel, wasn't he, at that point?" Attorney Wilkes agreed Devore was represented by counsel at the time, but further explicated that " [trial counsel] left on vacation and left the country without filing the motion or notice," that " [t]here may have been some miscommunication," and Devore, " being . . . aware of the timing, filed both."

         Attorney Wilkes then proceeded to argue the merits of the motion to the trial judge. In ruling on the matter, the trial judge began by indicating he did receive Devore's post-trial motions, but stated he was confused because, " for all [he knew], [Devore] was still represented by [trial counsel]." The trial judge further stated it was " difficult for [him] to respond when [Devore was] represented by counsel." He noted that Devore's pro se documents were timely filed, but stated it put him in an awkward position of not knowing how to respond since Devore was represented by counsel who had not communicated with the court that there were motions to be resolved by the court. The trial judge then addressed the merits of the argument, but found no error and no basis for a new trial.

         On March 27, 2014, Attorney Wilkes filed a notice of appeal from Devore's March 14, 2013, conviction and sentence, as well as the trial judge's oral ruling of March 17, 2014, which denied Devore's post-trial motion. On October 10, 2014, the State filed a motion to dismiss for lack of appellate jurisdiction. On November 13, 2014, this court denied the State's motion to dismiss. The parties thereafter filed the record on appeal and their briefs for consideration by this court.

         The State persists in asserting this court lacks appellate jurisdiction over the matter, declaring it did not waive the argument and continuing to maintain the appeal should be dismissed. Specifically, it contends that Devore was admittedly represented by counsel at the time he submitted the March 21, 2013, letter to the trial judge and, pursuant to Miller v. State, 388 S.C. 347, 697 S.E.2d 527 (2010), such substantive pro se documents are not proper when a party is represented by counsel. Thus, the March 21, 2013 letter could not operate as a notice of appeal or as a motion for reconsideration which would stay the time for filing of the appeal. Accordingly, the State maintains no proper motion for reconsideration or notice of appeal was served within the required ten days of Devore's conviction. Devore argues this court does have appellate jurisdiction. He contends the State's argument overlooks the fact that, although he had an attorney of record from the trial, he did not have an attorney " actively representing" him after the conclusion of the trial. Thus, he maintains his pro se filings did not create or constitute prohibited " hybrid representation." We agree with the State that this court lacks appellate jurisdiction to consider the matter.

         Our appellate court rules require a party intending to appeal to serve and file a notice of appeal. Rule 203(a), SCACR. In criminal appeals, after a trial resulting in conviction, a notice of appeal must be " served on all respondents within ten (10) days after the sentence is imposed." Rule 203(b)(2), SCACR. However, " [w]hen a timely post-trial motion is made under Rule 29(a), SCRCrimP, the time to appeal shall be stayed and shall begin to run from receipt of written ...

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