David Roberson v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ August 21, 2015

The Court of Appeals hereby passes the following order: A15A2306. DAVID ROBERSON v. THE STATE.

David Roberson was convicted of rape and kidnapping with bodily injury in 1994. We affirmed his convictions on appeal. Roberson v. State, 219 Ga. App. 160 (464 SE2d 262) (1995). Years later, Roberson filed a pro se motion for an out-of- time appeal, which the trial court denied on February 5, 2014. Roberson filed a notice of appeal from the trial court’s order on June 27, 2014. We lack jurisdiction for two reasons. First,“[a]n out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal.” Kilgore v. State, 325 Ga. App. 874, 875 (1) (756 SE2d 9) (2014) (punctuation omitted). Because Roberson has already had a direct appeal, he is not entitled to an out-of-time appeal. See Simmons v. State, 276 Ga. 525, 525, n. 2 (579 SE2d 735) (2003) (“The denial of a motion for out-of-time appeal is directly appealable when the criminal conviction at issue has not been the subject of direct appeal.”); Jackson v. State, 273 Ga. 320 (540 SE2d 612) (2001) (defendant “not entitled to another bite at the apple by way of a second appeal”). In addition, even if the order denying Roberson’s motion for an out-of-time appeal is directly appealable, Roberson’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, Roberson filed his notice of appeal 142 days after the order was entered. For these reasons, we lack jurisdiction over this appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia 08/21/2015 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.