Clarence Darral Ruffin v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 25, 2016

The Court of Appeals hereby passes the following order: A16A1675. CLARENCE DARRAL RUFFIN v. THE STATE.

Clarence Ruffin was convicted of theft by receiving stolen property, fleeing an officer, and obstructing an officer in October 2015. Ruffin thereafter filed a pro se motion for new trial, which the trial court dismissed on January 5, 2016. Ruffin filed a notice of appeal on February 10, 2016. We lack jurisdiction. A notice of appeal must be filed within 30 days after entry of the appealable order. See 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 Rowland v. State, 264 Ga. 872 (1) (452 SE2d 756) (1995). Because Ruffin filed his notice of appeal 36 days after entry of the trial court’s order, his appeal is untimely. Accordingly, we lack jurisdiction to consider this appeal, which is hereby DISMISSED. Ruffin signed his notice of appeal on February 3, 2016, which was timely from the trial court’s order. But the notice was not filed in the superior court until a week later, rendering the appeal untimely. Given that he is incarcerated, Ruffin is hampered in his ability to timely pursue appellate relief.1 Ruffin may be well-served to seek the appointment of appellate counsel to assist him in obtaining an out-of-time appeal.2

1 Ruffin opted to represent himself at trial, although the trial court appointed stand-by counsel to assist as needed. 2 See Merriweather v. Chatman, 285 Ga. 765, 766 (684 SE2d 237) (2003) (criminal defendant has a right to appellate counsel, although the right may be waived after the defendant has been advised of the dangers of self-representation); Simmons v. State, 276 Ga. 525, 526 (579 SE2d 735) (2003) (“[a]n out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal”)

Since Ruffin may be entitled to pursue an out-of-time appeal, he therefore is informed of the following in accordance with Rowland v. State, supra: This appeal has been dismissed because you failed to file a timely notice of appeal. 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.

Court of Appeals of the State of Georgia 05/25/2016 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. (punctuation omitted).