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Daniel Adam Delevan v. State
Citation: Not availableDocket: A17E0047
Court: Court of Appeals of Georgia; April 27, 2017; Georgia; State Appellate Court
Original Court Document: View Document
On April 26, 2017, Daniel Delevan requested the Court of Appeals of Georgia to reverse a Superior Court of Towns County order that revoked his supersedeas bond. He argued that the revocation was based on an erroneous conclusion that his appeal had concluded, stemming from an improper denial of his motion for an out-of-time appeal. Delevan contended that if the order revoking his bond is not vacated, he would serve part of his 180-day sentence for a third DUI before his appeal could be heard, rendering the appeal moot. The Court noted that its emergency powers under Rule 40 (b) are limited and that typically, they only issue orders necessary to maintain appeal jurisdiction or prevent mootness. The Court clarified that the current issue is not the merits of the denial of the out-of-time appeal, which is directly appealable, but whether to vacate the bond revocation. There is no constitutional right to bond pending an appeal; however, OCGA 17-6-1 (g) allows for discretion in granting an appeal bond for high and aggravated misdemeanors. The trial court must consider four factors regarding the risk of flight, danger to the community, potential for witness intimidation, and the frivolity of the appeal. The burden is on the defendant to demonstrate that none of these factors apply. Additionally, the trial court must reassess the appellant's custody status pending appeal after sentencing, providing notice and an opportunity to be heard. The documents suggest that the trial court initially granted Delevan an appeal bond prior to the hearing on his motion for a new trial. Delevan's motion for a new trial was denied on November 22, 2016, with the appeal period expiring thirty days later. On March 31, 2017, the trial court scheduled a hearing for the State’s "Motion to Enforce Sentencing" on April 20, 2017, where Delevan's counsel appeared and opposed the motion, including a request for an out-of-time appeal. Delevan claimed he was not given notice or opportunity to contest his bond revocation, but the record does not support this assertion. According to OCGA 17-6-1 (g), appeal bonds end when the right to appeal ends, and it was the counsel's responsibility to argue about the bond's continuation. The trial court evaluated four factors and found Delevan to be a flight risk and a danger to the community, findings that Delevan did not contest in his emergency motion as showing an abuse of discretion. Without a transcript, it is assumed that evidence at the hearing supported the court's findings. Delevan failed to demonstrate entitlement to relief under Rule 40 (b), leading to the denial of his motion. The Court of Appeals of Georgia confirmed this decision on April 26, 2017.