State v. McClendon

The sate's failure to file an enumeration of error precluded appellate review of the grant of the defendant's motion to suppress the drugs seized from him.

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Luther McClendon was charged with possessing methamphetamine. The trial court granted his motion to suppress the drugs seized from him. The State appeals; however, it has failed to file an enumeration of errors, either separately or as a part of its brief, as required by OCGA § 5-6-40 and Court of Appeals Rules 22 a, 23 a, and 25 a 2. For reasons that follow, this failure requires the dismissal of the appeal. Pursuant to OCGA § 5-6-40, an appellant is required to file an enumeration of errors with the clerk of the appellate court. It is these enumerated errors that frame this Court’s jurisdiction.1 Indeed, “the enumeration of errors is the very heart of the appeal procedure.”2 The failure to file any enumeration of errors, either in the brief or in a separate document, requires dismissal of the appeal.3

We note, however, that failure to file an enumeration of errors is not a basis for automatic dismissal under OCGA § 5-6-48 b. That statute provides, in pertinent part: where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.4 Here, it is not apparent from a review of the notice of appeal and record what specific errors the State intends to assert on appeal.5 In order to ascertain the alleged errors, we must comb through the State’s brief, which is not one of the documents listed in the statute. Under these circumstances, we conclude that the State has not sufficiently enumerated error and thus jurisdiction has not been conferred upon us.6 Accordingly, we are required to dismiss the appeal.

State v. McClendon

The sate's failure to file an enumeration of error precluded appellate review of the grant of the defendant's motion to suppress the drugs seized from him.

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