November 3, 2015.
From Greenville County. D. Garrison Hill, Circuit Court
Judge. Appellate Case No. 2013-000883.
Falkner Wilkes, of Greenville, for Appellant.
General Alan McCrory Wilson and Assistant Attorney General
John Benjamin Aplin, both of Columbia, and Solicitor William
Walter Wilkins, III, of Greenville, for Respondent.
A.C.J. WILLIAMS and THOMAS, JJ., concur.
Allen Devore, Jr. seeks to appeal his conviction for driving
under the influence (DUI). We dismiss the appeal for lack of
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."
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.
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."
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.
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
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.
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 ...