James Burl Hindman v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ August 03, 2018

The Court of Appeals hereby passes the following order: A18A2014. JAMES BURL HINDMAN v. THE STATE.

James Burl Hindman was convicted of armed robbery, eight counts of aggravated assault, theft by taking, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon, and we affirmed his convictions on appeal. Hindman v. State, 234 Ga. App. 758 (507 SE2d 862) (1998). In February 2018, Hindman filed a pro se motion seeking an order to allow him an out- of-time appeal. On April 4, 2018, the trial court denied the motion on the ground that Hindman was not entitled to a second direct appeal. Hindman then filed this notice of appeal on May 4, 2018. We, however, lack jurisdiction for two reasons. First, as noted by the trial court in its order, “[a]n out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal. . . . [I]t is not a remedy available to a criminal defendant whose conviction has been reviewed by an appellate court on direct appeal since that defendant is not entitled to a second direct appeal from his judgment of conviction.” Milliken v. State, 259 Ga. App. 144, 145 (575 SE2d 910) (2003) (punctuation omitted). Accordingly, Hindman’s appeal from the denial of his motion for out-of-time appeal must be dismissed. See Brown v. State, 296 Ga. App. 224 (674 SE2d 91) (2009) (dismissing appeal from denial of motion for out-of- time appeal because defendant “has already had a direct appeal, and raises no arguments now that he could not have raised then”). Second, under OCGA § 5-6-38 (a), a notice of appeal must be filed within 30 days after entry of the appealable order. The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction on this Court. Rocha v. State,

287 Ga. App. 446 (1) (a) (651 SE2d 781) (2007). Here, Hindman filed his notice of appeal 34 days after the order was entered. For these reasons, we hereby DISMISS this appeal.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 08/03/2018 I certify that the abov e 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.