Antonio J. Hamilton v. State

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Court of Appeals of the State of Georgia

ATLANTA,____________________ January 14, 2015

The Court of Appeals hereby passes the following order: A15D0202. ANTONIO J. HAMILTON v. THE STATE.

After pleading guilty to theft by deception, Antonio J. Hamilton filed a motion for an out-of-time appeal. The trial court denied the motion on May 1, 2014.

Hamilton allegedly did not receive the trial court’s order, and he filed a motion to set aside the ruling. The trial court denied the motion to set aside on November 17,

2014, and Hamilton filed this application for discretionary appeal on December 19, 2014.

The order at issue may be appealed directly.1 Ordinarily, if a party applies for discretionary review of a directly appealable order, we grant the application under

OCGA § 5-6-35 (j). To fall within this general rule, however, the application must be filed within 30 days of entry of the order to be appealed. See OCGA § 5-6-35 (d)

& (j); Hill v. State, 204 Ga. App. 582 (420 SE2d 393) (1992). Because Hamilton filed his application 32 days after entry of the order he seeks to appeal, it is untimely.

1 When a trial court fails to timely provide an order to an aggrieved party, that party may file a motion to have the order vacated and re-entered to begin anew the time for filing an appeal. See Cambron v. Canal Ins. Co., 246 Ga. 147, 148 (1) (269 SE2d 426) (1980). Such a motion is authorized by OCGA § 9-11-60 (g). See id; Crawford v. Kroger Co., 183 Ga. App. 836 (360 SE2d 274) (1987). Because the motion is not made pursuant to OCGA § 9-11-60 (d), no application for discretionary appeal is required to appeal a trial court’s order denying such a motion. See id.

The application is thus DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia 01/14/2015 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.