Court of Appeals
of the State of Georgia


                                        ATLANTA,____________________
                                                 April 26, 2017


The Court of Appeals hereby passes the following order:

A17E0047. DELEVAN v. THE STATE.

      On April 26, 2017, pursuant to Court of Appeals Rule 40 (b), Daniel Delevan
asked this Court for relief from an order of the Superior Court of Towns County
revoking his supersedeas bond. He contends that his bond was revoked based upon
an improper finding that his appeal had terminated, given that the trial court had
allegedly improperly denied his motion for an out-of-time appeal in a separate order.
He argues that this Court should vacate the trial court’s order revoking bond to
prevent the issue of whether he is entitled to bond from becoming moot. Delevan
argues that, since he was sentenced to serve only 180 days of his 36 month sentence
for his third DUI, a high and aggravated misdemeanor in violation of OCGA § 40-6-
391, he will have served a portion of his sentence before an appeal can be resolved
by the Court.
      This Court’s Rule 40 (b) emergency powers are limited and intended to be used
sparingly. “Generally, no order shall be made or direction given in an appeal until it
has been docketed in this Court.” Moreover, typically, we may only issue “such
orders or give direction to the trial court as may be necessary to preserve jurisdiction
of an appeal or to prevent the contested issue from becoming moot.”
      The issue before us is not whether the trial court erred in denying Delevan’s
motion for an out-of-time appeal. Such an order is directly appealable; and he has
filed a notice of appeal. Stephens v. State, 291 Ga. 837 (1) (733 SE2d 266) (2012)
(“The denial of a motion for out-of-time appeal is directly appealable when the
criminal conviction at issue has not been the subject of direct appeal.”) (citation and
punctuation omitted). If this Court reverses the trial court’s decision, Delevan will be
able to challenge the judgment of conviction by timely filing a notice of appeal.
      Rather, the issue before us is whether we should exercise our Rule 40 (b)
power to vacate an order of the trial court denying Delevan bond pending appeal.
Delevan contends that if we do not grant the requested relief, he will have served his
jail time before this Court has had an opportunity to hear an appeal from the order
revoking his supersedeas bond, rendering the issue moot.
      There is no constitutional right to bond pending appeal. Wade v. State, 218 Ga.
App. 377, 378 (2) (461 SE2d 314) (1995). However, OCGA § 17-6-1 (g) provides,
in relevant part, that “[t]he granting of an appeal bond to a person who has been
convicted of . . . any misdemeanor offense involving . . . any offense delineated as a
high and aggravated misdemeanor or of any offense set forth in Code Section
40-6-391, shall be in the discretion of the convicting court.”
      In exercising its discretion, the trial court must answer four questions:
      (1) whether there is a substantial risk the defendant will flee; (2) whether
      there is a substantial risk the defendant will pose a danger to others in
      the community; (3) whether there is a substantial risk the defendant will
      intimidate witnesses or otherwise interfere with the administration of
      justice; and (4) whether it appears the appeal is frivolous or taken only
      for the purpose of delay. An affirmative answer to any one of these
      questions will support the trial court’s decision to deny an appeal bond.
      Moreover, the defendant bears the burden of convincing the court to
      grant an appeal bond, and bond should not be granted unless the
      defendant presents sufficient information, evidence, or argument to
      convince the trial court that none of the four factors applies.


(Footnotes and punctuation omitted; emphasis supplied.) Luke v. State, 282 Ga. App.
749, 750 (639 SE2d 645) (2009). Finally, ‘[a]fter a sentence of imprisonment has
been imposed, the question of the appellant’s custody pending final decision on
appeal should be reviewed and a fresh determination made by the trial court.” Knapp
v. State, 223 Ga. App. 267, 268 (477 SE2d 621) (1996) (citation omitted). “In doing
so, the court must give applicant notice of the hearing and a chance to appear and be
heard.” Id.
      Based on the documents provided in support of his emergency motion, it
appears that the trial court originally granted Delevan an appeal bond prior to a
hearing on his motion for a new trial. Delevan’s motion for a new trial was denied on
November 22, 2016, and the time for filing a notice of appeal expired thirty days
later. OCGA § 5-6-38 (a). On March 31, 2017, the trial court issued an order setting
a hearing on the State’s “Motion to Enforce Sentencing” for April 20, 2017. It
appears that defense counsel was at the hearing and presented argument opposing the
State’s motion, including requesting an out-of-time appeal. Although Delevan
contends that he was denied notice and an opportunity to be heard on whether his
bond should be revoked, the record before us does not support that claim. “Appeal
bonds shall terminate when the right of appeal terminates[.]” OCGA § 17-6-1 (g).
Consequently, whether Delevan was entitled to have his bond continued under these
circumstances was inherently an issue of which counsel was on notice to argue.
      Additionally, based on the documents before us, it appears that the trial court
considered the four factors set forth above in the exercise of its sound discretion, and
concluded that Delevan was a flight risk and posed a threat or danger to members of
the community and their property. Delevan has not argued in his emergency motion
that either of these findings constituted an abuse of discretion. Given that the trial
court was entitled to deny bond based on those findings, Delevan has not
demonstrated any error below. Williford v. State, 218 Ga. App. 522, 523 (462 SE2d
632) (1995) (“The answer of ‘yes’ to any one of the above questions will support the
denial of an appeal bond, absent an abuse of discretion.”). Moreover, “[i]n the
absence of a transcript we must assume as a matter of law that the evidence adduced
at the hearing supported the findings of the court.” Id.
      Based on the information before us, Delevan has not carried his burden of
showing that he is entitled to relief pursuant to Rule 40 (b). Consequently, the motion
hereby ordered DENIED.




                                        Court of Appeals of the State of Georgia
                                               Clerk’s Office, Atlanta,____________________
                                                                         04/26/2017
                                               I certify that the above is a true extract from
                                        the minutes of the Court of Appeals of Georgia.
                                               Witness my signature and the seal of said court
                                        hereto affixed the day and year last above written.


                                                                                        , Clerk.
