Harbonius Cornelius Allen v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 18, 2017

The Court of Appeals hereby passes the following order: A17A0730. HARBONIUS CORNELIUS ALLEN v. THE STATE.

Harbonius Cornelius Allen was convicted of multiple counts of theft crimes. On direct appeal, this Court affirmed in part and reversed in part Allen’s judgment of conviction. Allen v. State, 293 Ga. App. 439 (667 SE2d 215) (2008). Subsequently, in August 2016, Allen filed a motion to “reduce, modify, remold, and/or correct” an allegedly void sentence imposed upon a probation revocation. On September 6, 2016, the trial court entered an order denying that motion. Allen seeks to appeal that ruling. However, as explained below, Allen has failed to invoke this Court’s jurisdiction. Allen properly filed a discretionary application from the trial court’s order. See generally Jones v. State, 322 Ga. App. 269, n. 2 (745 SE2d 1) (2013). On October 17, 2016, this Court granted Allen’s application and advised him that he had ten days in which to file a notice of appeal. See OCGA § 5-6-35 (g). Allen’s notice of appeal was not filed, however, until Friday, October 28, 2016 – eleven days after our order granting his discretionary application. Because the notice of appeal was thus untimely, it failed to invoke this Court’s jurisdiction. See Rowland v. State, 264 Ga. 872 (1) (452 SE2d 756) (1995) (“[T]he proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.”) (citation and punctuation omitted); White v. White, 188 Ga. App. 556 (373 SE2d 824) (1988). Second, even if Allen had a right of direct appeal with respect to the denial of his motion alleging a void sentence, Allen’s notice of appeal was nevertheless untimely. Filed more than 30 days after entry of that order, it was ineffective to confer jurisdiction in this Court. OCGA § 5-6-38 (a) (requiring filing of a notice of

appeal within 30 days of entry of an appealable order). In light of the foregoing, this appeal is DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 01/18/2017 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.