Keith Barber v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ August 06, 2024

The Court of Appeals hereby passes the following order: A25A0040. KEITH BARBER v. THE STATE.

In 2017, Keith Barber was convicted of aggravated assault with a deadly weapon and possession of a firearm by a convicted felon, and sentenced to 20 years in confinement. We affirmed Barber’s convictions and sentence on appeal. Barber v. State, Case No. A20A1797 (Dec. 21, 2020). In 2021, Barber filed a motion for sentence modification, challenging his aggravated assault conviction and resulting sentence based on the sufficiency of the evidence presented at trial. In 2024, Barber filed an extraordinary motion for new trial on the same grounds. In a single order, the trial court dismissed the motion for sentence modification and denied the extraordinary motion for new trial, and Barber filed this direct appeal. As explained below, this appeal must be dismissed. Regardless of nomenclature, Barber’s motion for sentence modification did not challenge his sentence, but instead challenged the validity of his underlying conviction. See Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150) (2010); Sledge v. State, 312 Ga. App. 97, 98 (1) (717 SE2d 682) (2011) (“[c]ourts should examine the substance of a motion, rather than its nomenclature, to determine what sort of relief is sought”). However, “a petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case,” Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786) (2009), and any appeal from an order denying or dismissing such a petition or motion must be dismissed, see Roberts, 286 Ga. at 532; Harper, 286 Ga. at 218 (2). In addition, an appeal from an order denying an extraordinary motion for new trial must be initiated by filing an application for discretionary review. OCGA § 5-6-35

(a) (7), (b); Balkcom v. State, 227 Ga. App. 327, 329 (489 SE2d 129) (1997). “Compliance with the discretionary appeals procedure is jurisdictional.” Smoak v. Dept. of Human Resources, 221 Ga. App. 257, 257 (471 SE2d 60) (1996). Barber’s failure to follow the discretionary review procedure thus deprives us of jurisdiction over this direct appeal. See id. For the above reasons, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 08/06/2024 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.