John Mostiller v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ August 04, 2021

The Court of Appeals hereby passes the following order: A21A1772. JOHN MOSTILLER v. THE STATE.

A jury found John Mostiller guilty of involuntary manslaughter and aggravated battery, and the trial court entered his amended sentence on February 10, 2020. On March 23, 2020, Mostiller filed a motion for a new trial, which the trial court denied on the merits on May 11, 2021. Mostiller filed a notice of appeal on June 10, 2021. We lack jurisdiction. A notice of appeal must be filed within 30 days of entry of the judgment or trial court order sought to be appealed. OCGA § 5-6-38 (a). The proper and timely filing of a notice of appeal is an absolute requirement to confer appellate jurisdiction on this Court. Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Although the filing of a motion for a new trial generally extends the deadline for filing a notice of appeal, see OCGA § 5-6-38 (a), an untimely motion for a new trial does not extend the time for filing an appeal. Pounds v. State, 309 Ga. 376, 378 (2) (b) n. 4 (846 SE2d 48) (2020); accord Blackmon v. State, 306 Ga. 90, 91 n. 1 (829 SE2d 75) (2019) (“[T]he time period for filing a notice of appeal is not tolled by an untimely motion for new trial.”). To be timely, a motion for a new trial must be made “within 30 days of the entry of the judgment on the verdict.” OCGA § 5-5-40 (a).1

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

Mostiller’s motion for a new trial, filed 42 days after entry of his amended sentence, was untimely and did not extend the time for filing a notice of appeal.2 See Pounds, 309 Ga. at 378 (2) (b) n. 4; Blackmon, 306 Ga. at 91 n. 1. Under these circumstances, Mostiller’s appeal is untimely, and this appeal is hereby DISMISSED for lack of jurisdiction. See Peters v. State, 237 Ga. App. 625, 625 (516 SE2d 331) (1999), abrogated in part on other grounds by Pounds, 309 Ga. at 378-379 (2) (b) & n. 4. Because Mostiller is represented by counsel, he is informed of the following in accordance with Rowland v. State, 264 Ga. at 875-876, and Pounds v. State, 309 Ga. at 384-385 (4): This appeal has been dismissed because you failed to file a timely notice of appeal from your judgment of conviction. If you still wish to appeal, you may petition the trial court for leave to file an out-of-time appeal. If the trial court denies your request, you will have 30 days from the entry of that order to file a notice of appeal referencing the denial of your request for an out-of-time appeal. If the trial court grants your request, that order will have the effect of rendering your initially untimely motion for a new trial ripe for review. See Pounds, 309 Ga. at 385 (4) (because a trial court order that denies, rather than dismisses, an untimely motion for a new trial is invalid, the subsequent grant of an out-of-time appeal has the effect of ripening an initially untimely motion for a new trial). In the event the trial court grants an out-of-time appeal and thereafter denies your motion for a new trial, you may then obtain appellate review by filing a notice of appeal with 30 days of the order denying your motion for a new trial. See OCGA § 5-6-38 (a).

2 Mostiller’s motion for a new trial was due on March 11, 2020, see OCGA § 5-6-38 (a), three days before the Chief Justice suspended filing deadlines in Georgia on March 14, 2020. See Supreme Court Order Declaring Statewide Judicial Emergency (Mar. 14, 2020), as extended on April 6, May 11, and June 12, 2020, and as extended in part on July 10, 2020, available at www.gasupreme.us.

The Clerk of Court is DIRECTED to send a copy of this order to Mostiller and to his attorney, and the latter also is DIRECTED to send a copy to Mostiller.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 08/04/2021 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.