Eric T. Russell, Sr. v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 03, 2023

The Court of Appeals hereby passes the following order: A23A1378. ERIC T. RUSSELL, SR. v. THE STATE.

In September 2005, following a jury trial, Eric T. Russell, Sr. was convicted of two counts of selling cocaine and two counts of possessing cocaine. In November 2005, in a separate case pending in the same court, Russell entered a negotiated plea to three counts of obstruction of an officer. He appealed only his drug convictions, which we affirmed in 2011. See Russell v. State, 308 Ga. App. 328 (707 SE2d 543) (2011). On October 11, 2022, Russell filed a joint notice of appeal and motion for out of time appeal seeking to appeal his convictions in both cases, which was docketed in this Court as Case No. A23A0545. We dismissed that appeal on November 29, 2022 for failure to file an enumeration of errors and brief. On April 13, 2023, Russell filed another notice of appeal seeking to appeal his convictions in both cases. We lack jurisdiction for two reasons. First, Russell failed to file a timely notice of appeal. A notice of appeal must be filed within 30 days after entry of the order to be appealed. OCGA § 5-6-38 (a). The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction on this Court. See Davis v. State, 330 Ga. App. 711, 711 (769 SE2d 133) (2015). Because Russell’s notice of appeal was filed approximately 17 years after his judgments of conviction were entered, it is untimely. Second, Russell’s current appeal is barred because the issues he raises have or could have been litigated in his prior appeals. See Echols v. State, 243 Ga. App. 775, 776 (534 SE2d 464) (2000) (“It is axiomatic that the same issue cannot be relitigated ad infinitum. The same is true of appeals of the same issue on the same grounds.”) (punctuation omitted); Jackson v. State, 273 Ga. 320, 320 (540 SE2d 612) (2001) (a

party “is not entitled to another bite at the apple by way of a second appeal”); Ross v. State, 310 Ga. App. 326, 327 (713 SE2d 438) (2011) (dismissal of previous appeal constitutes binding law of the case, even though the appeals court did not reach the merits of the claim in the prior case). Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 05/03/2023 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.