Gerry Wendell Johnson v. State

Court of Appeals of the State of Georgia July 10, 2013 ATLANTA,__________________ The Court of Appeals hereby passes the following order: A13A1932. GERRY WENDELL JOHNSON v. THE STATE. A jury found Gerry Wendell Johnson guilty of armed robbery and other offenses, and we affirmed his convictions on appeal. See Johnson v. State, 305 Ga. App. 838 ( 700 SE2d 726 ) (2010). Johnson subsequently filed a motion for out-oftime appeal. The trial court denied his motion on February 28, 2013, and Johnson filed this direct appeal on April 19. We lack jurisdiction. First, Johnson’s notice of appeal is untimely. Under OCGA § 5-6-38 (a), a notice of appeal must be filed within 30 days after entry of the appealable order. The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction on this Court. Rocha v. State, 287 Ga. App. 446 (1) (a) ( 651 SE2d 781 ) (2007). Here, Johnson filed his notice of appeal 50 days after the order was entered. Second, because Johnson has already had a direct appeal, he cannot appeal from the trial court’s denial of his motion for out-of-time appeal. See Richards v. State, 275 Ga 190 ( 563 SE2d 856 ) (2002). For these reasons, we lack jurisdiction to consider Johnson’s appeal. Accordingly, it is hereby DISMISSED. Court of Appeals of the State of Georgia 07/10/2013 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.