Hassan McKeithan v. State

Court of Appeals of the State of Georgia

ATLANTA,__________________ April 03, 2013

The Court of Appeals hereby passes the following order: A13A0159. HASSAN MCKEITHAN v. THE STATE.

Following the revocation of his probation under the First Offender Act, Hassan McKeithan was re-sentenced to twenty years imprisonment with credit for time served. In September 2010, McKeithan filed a pro se motion to modify his sentence, arguing that his resentencing was invalid because he did not qualify for First Offender treatment in the first instance. The trial court denied his motion in September 2010, and McKeithan did not appeal from this order. Thereafter, McKeithan filed a motion to correct a void sentence, raising the same claims as in his motion to modify his sentence. The trial court denied McKeithan’s motion to correct a void sentence in February 2011, and McKeithan did not appeal from this order either. In October 2011, McKeithan filed a “Motion to Modify and/or Vacate Void Sentence,” raising the same claims as before. The trial denied his motion, and on January 27, 2012, McKeithan filed his notice of appeal from that order. The State has filed a motion to dismiss, arguing that McKeithan could not directly appeal from the order denying his last motion to modify/vacate his sentence because such motion was effectively a motion to reconsider. In construing McKeithan’s motion, we look to the substance of the motion rather than its nomenclature. See Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 590 (690 SE2d 397) (2010) (in pleadings, substance controls over nomenclature). Here, since McKeithan raised the same claims in his last motion as in his prior motions, he effectively sought reconsideration of the trial court’s prior order denying his motion to modify. A motion for reconsideration, however, does not extend the time for filing a notice of appeal, and therefore we lack jurisdiction to entertain the appeal. See Campbell v. State, 192 Ga. App. 316 (385 SE2d 14) (1989). For this reason, we hereby GRANT the State’s motion, and the appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia 04/03/2013 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.