Antwan Creighton v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 06, 2017

The Court of Appeals hereby passes the following order: A17A0811. ANTWAN CREIGHTON v. THE STATE.

A jury found Antwan Creighton guilty of armed robbery, attempted armed robbery, first-degree burglary, possession of a firearm during the commission of a felony, and obstruction. Creighton filed a timely motion for a new trial, which the trial court denied on October 7, 2016. On November 22, 2016, Creighton filed a pro se notice of appeal. We lack jurisdiction. To be timely, a notice of appeal must be filed within 30 days of entry of the order on appeal. 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). Because Creighton filed his notice of appeal 46 days after entry of the order he seeks to appeal, it is untimely. Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction. Creighton signed his notice of appeal on November 1, 2016, which was less than 30 days after the trial court entered its order denying his motion for a new trial, but his notice of appeal was not filed in the trial court until 21 days later. Given that he is incarcerated, Creighton may be hampered in his ability to pursue appellate relief in a timely manner and may want to consider seeking the appointment of appellate counsel to assist him in obtaining an out-of-time appeal. See Merriweather v. Chatman, 285 Ga. 765, 766 (684 SE2d 237) (2009) (a criminal defendant has a right to appellate counsel, although that 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) (“An out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal.”) (punctuation omitted).

Since Creighton may be entitled to pursue an out-of-time appeal, he is informed of the following in accordance with Rowland v. State, supra: This appeal has been dismissed because you failed to pursue it in a timely manner. 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 Clerk’s Office, Atlanta,____________________ 01/06/2017 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.