Christopher Onyekwe v. State

Court of Appeals of the State of Georgia

ATLANTA,__________________ March 19, 2013

The Court of Appeals hereby passes the following order: A13A1284. CHRISTOPHER ONYEKWE v. THE STATE.

In March 2012, Christopher Onyekwe was convicted in state court of two counts of battery and sentenced to two years in custody. In October 2012, he filed a “Motion to Set Aside Judgment,” which – in substance – was a motion for new trial. See Forest City Gun Club v. Chatham Co., 280 Ga. App. 219, 220 (1) (633 SE2d 623) (2006) (“[P]leadings, motions, and orders are construed according to their substance and function and not merely by nomenclature.”) The state court denied the motion, and Onyekwe filed a notice of appeal.1 We lack jurisdiction because the appeal is not timely. Although generally a motion for new trial extends the deadline for filing a notice of appeal, an untimely motion for new trial is void and does not extend the time for filing an appeal. See Wicks v. State, 277 Ga. 121 (587 SE2d 21) (2003). To be timely, a motion for new trial must “be made within 30 days of the entry of the judgment on the verdict.”2 OCGA § 5-5-40 (a). Here, judgment was entered in March 2012, but Onyekwe did not file a motion for new trial until seven months later. Thus, the motion for new trial was untimely and did not extend the time for filing the

1 Although Onyekwe purported to appeal to superior court, the state court transmitted the appeal to this Court. 2 A defendant may obtain permission from the trial court to file an out-of-time motion for new trial, the denial of which may be appealed directly. See Washington v. State, 276 Ga. 655, 656 (581 SE2d 518) (2003). Here, however, the record does not show that Onyekwe sought permission to file an out-of-time motion.

notice of appeal. Under these circumstances, the appeal must be DISMISSED. See Peters v. State, 237 Ga. App. 625 (516 SE2d 331) (1999). Because Onyekwe is represented by counsel, he is informed of the following in accordance with Rowland v. State, 264 Ga. 872 (452 SE2d 756) (1995): This appeal has been dismissed because of the failure to file a timely notice of appeal. If you still wish to appeal, however, you may request the trial court to grant an out-of-time appeal. If the trial court grants an out-of-time appeal, you will have 30 days from that grant in which to instigate an appeal. If the trial court denies your request for an out-of- time appeal, you may appeal that denial by filing a notice of appeal within 30 days of the denial. If you no longer wish to appeal your conviction, you need not do anything else. The Clerk of Court is directed to send a copy of this order to Onyekwe as well as to Onyekwe’s attorney, who is also directed to send a copy to Onyekwe.

Court of Appeals of the State of Georgia 03/19/2013 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.