Patrick Lamar Mack v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ December 26, 2018

The Court of Appeals hereby passes the following order: A19A0877. PATRICK LAMAR MACK v. THE STATE.

In 2010, Patrick Lamar Mack was convicted of rape and other crimes. In 2013, he filed a motion for new trial, and in 2017, the trial court denied the motion. Mack appeals, but 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 a 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 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).1 Mack’s motion for a new trial, filed years after entry of his judgment of conviction, was untimely and did not extend the time for filing a notice of appeal. See Wicks, 277 Ga. at 121-122. Under these circumstances, Mack’s appeal is untimely and is therefore DISMISSED for lack of jurisdiction. See Peters v. State, 237 Ga. App. 625, 625 (516 SE2d 331) (1999).

1 A defendant may obtain permission from the trial court to file an out-of-time motion for new trial, the denial of which may be appealed directly. See Washington v. State, 276 Ga. 655, 656 (1) (581 SE2d 518) (2003). Here, however, the record does not show that Mack sought permission to file an out-of-time motion.

To the extent that Mack’s right to appeal has been frustrated by errors of counsel, he may be entitled to an out-of-time appeal. See Rowland, 264 Ga. at 875- 876 (2) . He therefore is informed of the following in accordance with Rowland: This appeal has been dismissed because you failed to file a timely notice of appeal. 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 Mack as well as to Mack’s attorney, who is also DIRECTED to send a copy to Mack.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 12/26/2018 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.