Kelvin Carswell v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ December 15, 2015

The Court of Appeals hereby passes the following order: A16A0564. KELVIN CARSWELL v. THE STATE.

Carswell was convicted of hijacking a motor vehicle and sentenced in January 2012. Following the denial of his motion for new trial, he directly appealed to this Court. While his appeal was pending, his trial counsel withdrew, and we dismissed his appeal because he failed to file an appellate brief. Carswell v. State, A14A0185 (dismissed Dec. 11, 2013). Carswell subsequently filed a pro se motion for out-of- time appeal in the trial court, which the court granted on August 20, 2015. However, Carswell’s new appellate attorney did not file a notice of appeal from that order until September 30, 2015. We, therefore, lack jurisdiction to consider this appeal. 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, Carswell filed his notice of appeal 41 days after the order was entered. Accordingly, we lack jurisdiction to entertain this appeal, which is hereby DISMISSED. Because Carswell is represented by counsel, he is again informed of the following in accordance with Rowland v. State, 264 Ga. 872, 875-876 (2) (452 SE2d 756) (1995): This appeal has been dismissed because of your counsel's failure to file a proper notice of appeal. If you still wish to appeal, you may petition the trial court for leave to file another out-of-time appeal. See Jaheni v. State, 281 Ga. App. 213 (635 SE2d 821) (2006). If the trial court enters an order granting your request, you will have 30 days from the filing date of that order to file a notice of appeal referencing your conviction. If the trial court enters an order denying your request,

you will have 30 days from the filing date of that order to file a notice of appeal referencing the denial of your request for an out-of-time appeal. In accordance with Bodiford v. State, 238 Ga. App. 531, 532-533 (517 SE2d 356) (1999), the Clerk of the Court of Appeals of Georgia is directed to send a copy of this opinion to Carswell and a copy to Carswell's current attorney, who is also ordered to send a copy to Carswell.

Court of Appeals of the State of Georgia 12/15/2015 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.