The Supreme Court has ruled that even if a defendant who was found guilty in the first trial withdraws their appeal under the mistaken belief that the trial procedure ends upon withdrawal, the withdrawal cannot be canceled on the grounds of error.
According to the legal community on the 27th, the Supreme Court's 3rd Division (Presiding Justice No Jeong-hee) upheld the original sentence of 1 year and 4 months imprisonment in the final appeal trial of Mr. A (54), who was indicted on charges including obstruction of official duties, assault, special threats, and violation of the Road Traffic Act (drunk driving).
The court stated, "Since the defendant's first trial lawyer submitted a notice of appeal within the appeal period against the first trial judgment, the original court's judgment that the defendant's appeal was filed after the expiration of the appeal right is incorrect," but added, "As the appeal right was extinguished due to the defendant's withdrawal of the appeal, the original court's dismissal of the defendant's appeal is justified in conclusion, so the aforementioned error in the original court's judgment does not affect the outcome," explaining the reason for dismissing the appeal.
Mr. A is accused of assaulting police officers who responded to a report at a beach in Seo-gu, Busan, on November 17, 2020, thereby obstructing official duties, and also assaulting a citizen who tried to intervene.
In addition, in August 2021, he is charged with threatening Mr. B by coming out of his house holding a sashimi knife and pointing it at Mr. B's neck while saying "Follow me," after getting angry because Mr. B did not properly answer questions about where he lived. He is also accused of driving a motorcycle in a state of intoxication with a blood alcohol concentration of 0.209% in May 2022.
The first trial court found all charges against Mr. A guilty and sentenced him to 1 year and 4 months imprisonment on December 7 last year.
Both Mr. A's lawyer and the prosecution appealed on December 7, 2022, the day the first trial sentence was announced. However, two days later, on December 9, 2022, Mr. A submitted a withdrawal of appeal to the Busan Detention Center warden.
Since the prosecutor also appealed the first trial judgment, the second trial proceeded, and Mr. A's lawyer belatedly submitted a statement of reasons for appeal on February 17, 2023, indicating an intention to appeal the first trial judgment.
In the statement of reasons for appeal, Mr. A's lawyer argued, "The defendant's withdrawal of appeal was made under the defendant's mistaken belief that the trial procedure ends upon withdrawal of the appeal."
However, the second trial court did not accept this argument.
The court stated, "Since the defendant did not submit a notice of appeal but only a withdrawal of appeal, it cannot be considered a valid withdrawal of appeal." This was a judgment that overlooked the fact, pointed out by the Supreme Court, that Mr. A's lawyer had submitted a notice of appeal on the day the first trial judgment was announced.
Furthermore, the court concluded, "Even if the submission of the statement of reasons for appeal by the lawyer is regarded as the submission of a notice of appeal, since the notice of appeal was submitted to this court on February 17, 2023, after the 7-day appeal period from the original judgment on December 7, 2022, it is clear that the defendant's appeal was filed after the expiration of the appeal right."
The court added, "Therefore, the defendant's appeal should be dismissed by decision, but since a judgment must be made on the prosecutor's appeal, the defendant's appeal will be dismissed together by judgment as ordered."
Article 362(1) of the Criminal Procedure Act stipulates that if an appeal is filed in violation of the legal form or clearly after the expiration of the appeal right and the original court fails to dismiss the appeal by decision, the appellate court shall dismiss the appeal by decision.
The Supreme Court judged that although the second trial court erred in overlooking the initial submission of the notice of appeal during the appeal process, the conclusion that the withdrawal of appeal was valid is reasonable.
The court stated, "When procedural acts such as withdrawal of appeal are performed under error, for the act to be invalid, the error must have occurred due to reasons for which the actor or their agent is not responsible," and added, "According to the lawyer's own claim, the defendant withdrew the appeal to end the trial procedure, so it is difficult to see the withdrawal as due to error. Even if it were due to error, since the defendant withdrew the appeal based on their own judgment, it is hard to say there was no negligence, so the defendant's withdrawal of appeal is valid."
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