Candida Summerlin v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 19, 2016

The Court of Appeals hereby passes the following order: A16A0674. CANDIDA SUMMERLIN v. THE STATE.

A jury convicted Candida Summerlin of multiple offenses, including three counts of criminal attempt to commit murder, and the trial court entered judgment on December 1, 2014. Although the record contains no motion for new trial, Summerlin filed an amended motion for new trial on July 31, 2015, which the trial court denied on September 15, 2015. Summerlin filed a notice of appeal on September 23, 2015. A notice of appeal must be filed within 30 days of the entry of an appealable judgment. OCGA § 5-6-38 (a). The proper and timely filing of the notice of appeal is an absolute requirement to confer appellate jurisdiction upon this Court. See 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 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 Summerlin’s amended motion for a new trial, which was filed 242 days after the trial court entered judgment, was untimely and thus did not extend the time for filing the notice of appeal. See Wicks, supra at 121-122. Under these circumstances,

1 A defendant also 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 Summerlin sought permission to file an out-of-time motion.

we lack jurisdiction to consider this appeal, which is hereby DISMISSED. See Peters v. State, 237 Ga. App. 625, 625 (516 SE2d 331) (1999). Because Summerlin is represented by counsel, she 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 Summerlin and to her attorney, and the latter also is directed to send a copy to Summerlin.

Court of Appeals of the State of Georgia 01/19/2016 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.