Rafer Grier v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ November 06, 2015

The Court of Appeals hereby passes the following order: A16A0236. RAFER GRIER v. THE STATE.

A jury convicted Rafer Grier of aggravated child molestation and statutory rape, and the trial court entered his judgment of conviction on May 9, 2013. On November 24, 2014, Grier filed a motion for a new trial, which the trial court denied on May 15, 2015. Grier filed a notice of appeal on June 12, 2015. We lack jurisdiction. 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 is void and does not extend the time for filing an appeal, Wicks v. State, 277 Ga. 121, 121-122 (587 SE2d 21) (2003). 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 The proper and timely filing of the notice of appeal is an absolute requirement to confer appellate jurisdiction upon this Court. Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Here, judgment was entered in 2013, but Grier did not file a motion for a new trial until more than one year later. Thus, the motion for a new trial was untimely and did not extend the time for filing the notice of appeal. See Wicks, supra at 121-122. Under these circumstances, Grier’s appeal is untimely and is therefore DISMISSED

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 Grier sought permission to file an out-of-time motion.

for lack of jurisdiction. See Peters v. State, 237 Ga. App. 625, 625 (516 SE2d 331) (1999). Because Grier is represented by counsel, he is informed of the following in accordance with Rowland v. State, supra at 875-876: 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 grants your request, you will have 30 days from the entry of that order to file a notice of appeal referencing your conviction. 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. The Clerk of Court is directed to send a copy of this order to Grier and to his attorney, and the latter also is directed to send a copy to Grier.

Court of Appeals of the State of Georgia 11/06/2015 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.