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Scroggins v. State

The trial court lacked authority to supplement its order revoking the defendant's probation with the order purporting to grant an out-of-time discretionary appeal.

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This Court granted a writ of certiorari to the Court of Appeals to review that Court’s dismissal of Samuel Scroggins’s application for discretionary appeal. For the reasons that follow, we reverse, and remand. In 2001, Scroggins was convicted of theft by receiving, forgery, and financial transaction card fraud, and sentenced to probation. On August 5, 2008, his probation was revoked. On July 20, 2009, he moved in the trial court for an out-of-time discretionary appeal, and the trial court granted that motion on August 13, 2009. Scroggins’s subsequent application for discretionary appeal was dismissed by the Court of Appeals as untimely from the probation revocation; that Court stated in its order that the trial court did not have the authority to grant an out-of-time discretionary appeal. Upon application to this Court for a writ of certiorari, we granted the writ, thus granting Scroggins’s application for discretionary appeal; in our order instructing him to file a notice of appeal, we directed the parties to address whether a trial court has the authority to grant an out-of-time discretionary appeal.

After the appeal was docketed in this Court, the State moved for this Court to dismiss it as improvidently granted, noting that on September 2, 2008, Scroggins had filed a notice of appeal, stating that appeal was taken from the August 5, 2008 order revoking his probation. No action was taken on this notice of appeal by the trial court clerk, and no direct appeal was ever docketed in the Court of Appeals based upon the September 2, 2008 notice of appeal. The notice of appeal was never addressed by either the Court of Appeals or the trial court.1

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