Donald Harris, Jr. v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ October 18, 2016

The Court of Appeals hereby passes the following order: A17A0407. DONALD HARRIS, JR. v. THE STATE.

A jury found Donald Harris, Jr., guilty of aggravated assault and possession of a firearm by a convicted felon, and the trial court entered his judgment of conviction on December 10, 2015. On January 12, 2016, Harris filed a motion for a new trial, which the trial court denied on August 19, 2016. Harris filed a notice of appeal on September 7, 2016. We lack jurisdiction. 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 on this Court. 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

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

Harris’s motion for a new trial, which he filed 33 days after entry of his judgment of conviction, was untimely and did not extend the time for filing the notice of appeal. See Wicks, 277 Ga. at 121-122. Under these circumstances, Harris’s appeal is untimely and is therefore DISMISSED for lack of jurisdiction. See Peters v. State, 237 Ga. App. 625, 625 (516 SE2d 331) (1999). Because Harris is represented by counsel, he is informed of the following in accordance with Rowland v. State, 264 Ga. 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 Harris and to his attorney, and the latter also is DIRECTED to send a copy to Harris.

Court of Appeals of the State of Georgia 10/18/2016 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. not show that Harris sought permission to file an out-of-time motion.