Ayonna Celeste Jenkins v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ June 23, 2017

The Court of Appeals hereby passes the following order: A17A1814. AYONNA CELESTE JENKINS v. THE STATE.

Following a bench trial, the trial court found Ayonna Celeste Jenkins guilty of leaving the scene of an accident and improper passing. The trial court entered its judgment of conviction and sentence on November 7, 2016, and Jenkins filed a pro se notice of appeal of the judgment on December 1, 2016. On January 5, 2017, Jenkins’s appellate counsel entered an appearance on her behalf, withdrew the notice of appeal, and filed a motion for new trial. The trial court denied the motion for new trial on March 30, 2017, and Jenkins, through counsel, filed a notice of appeal on April 14, 2017. 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). A defendant may obtain permission from the trial court to file an out-of-time motion for new trial. See Washington v. State, 276 Ga. 655, 656 (1) (581 SE2d 518) (2003). Here, however, the record shows that Jenkins’s attorney withdrew the notice of appeal and filed an untimely motion for new trial without first obtaining leave of the court to do so. Under these circumstances, Jenkins’s appeal is untimely and is

therefore DISMISSED. See Peters v. State, 237 Ga. App. 625, 625 (516 SE2d 331) (1999). Because Jenkins is represented by counsel, she 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 Jenkins and to her attorney, and the latter also is DIRECTED to send a copy to Jenkins.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 06/23/2017 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.