Gregory Weber v. State

Court of Appeals of the State of Georgia

ATLANTA,_________________ June 22, 2012

The Court of Appeals hereby passes the following order: A12A1903. GREGORY WEBER v. THE STATE.

Gregory Weber was convicted of selling cocaine. Weber filed a motion for new trial, which the trial court denied on December 16, 2011. Sixty-one days later on February 15, 2011, Weber filed a motion to extend time for filing his notice of appeal and his notice of appeal. The trial court granted the motion on March 7, 2012. We lack jurisdiction. A notice of appeal must be filed within 30 days after the entry of an appealable judgment. OCGA § 5-6-38 (a). Under OCGA § 5-6-39 (a) (1), a court may grant a 30-day extension for the filing of a notice of appeal. However, our jurisdiction over an appealable order “requires within 30 days either the filing of a notice of appeal or the obtaining of an extension of time therefor.” (Citation and punctuation omitted.) Porter v. State, 271 Ga. 498, 499 (521 SE2d 566) (1999). In the instant case, Weber filed neither a notice or a request for extension within 30 days of the order denying his motion for new trial. Therefore, the trial court lacked authority to extend the time for the filing of the notice of appeal.1 We note, however, that Weber may be entitled to pursue an out-of-time appeal. He is therefore informed of the following pursuant to Rowland v. State, 264 Ga. 872 (452 SE2d 756) (1995): This appeal has been dismissed because your counsel failed

1 It appears that Weber did not receive the order denying the motion for new trial until after the expiration of the time allowed to file a notice of appeal. Thus, he is also informed that he may seek to have the order set aside and re-entered in the manner described in Cambron v. Canal Ins. Co., 246 Ga. 147, 148-149 (1) (269 SE2d 426) (1980).

to file a timely notice of appeal. If you still wish to appeal, you may petition the trial court for leave to file an out-of-time appeal. If the trial court grants your request, you will have 30 days from the entry of that order to file a notice of appeal referencing your conviction. If the trial court denies your request, you will have 30 days from the entry of that order to file a notice of appeal referencing the denial of your request for an out-of-time appeal. The Clerk of Court is directed to send a copy of this order to Weber and Weber’s attorney, and the latter is also directed to send a copy to Weber.

Court of Appeals of the State of Georgia 06/22/2012 Clerk’s Office, Atlanta,_________________ 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.