Lamar Johnson v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ December 06, 2016

The Court of Appeals hereby passes the following order: A17A0507. LAMAR JOHNSON v. THE STATE.

Lamar Johnson was convicted of armed robbery, hijacking a motor vehicle, kidnapping, false imprisonment, and possession of a firearm during the commission of a crime. We affirmed his convictions on appeal. See Johnson v. State, 309 Ga. App. 655 (710 SE2d 857) (2011). In August 2016, Johnson filed an extraordinary motion for new trial, which the trial court denied on August 30, 2016. On October 4, 2016, Johnson filed a notice of appeal. However, we lack jurisdiction for two reasons. First, Johnson has no right to a direct appeal. Under OCGA § 5-6-35 (a) (7), appeals from the denial of an extraordinary motion for new trial must comply with the discretionary appeal procedure. Balkcom v. State, 227 Ga. App. 327, 329 (489 SE2d 129) (1997). Complying therewith, Johnson filed an application for discretionary appeal, but we denied the application on the merits. See Case No. A17D0093, denied October 13, 2016. Our denial of Johnson’s application was an adjudication on the merits; thus the doctrine of res judicata bars further appeal of this order. See Northwest Social & Civic Club, Inc. v. Franklin, 276 Ga. 859, 860 (583 SE2d 858) (2003); Hook v. Bergen, 286 Ga. App. 258, 260-261 (1) (649 SE2d 313) (2007). Second, even if Johnson had a right of direct appeal here, this appeal is untimely. A notice of appeal must be filed within 30 days of entry of the trial court order sought to be appealed. 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. Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Johnson’s notice of appeal is untimely, as he filed it 35 days after entry of the trial court order he seeks

to appeal. For the above reasons, this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 12/06/2016 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.