James Russell Simmons v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ December 20, 2018

The Court of Appeals hereby passes the following order: A19A0643. JAMES RUSSELL SIMMONS v. THE STATE.

In 2001, James Russell Simmons was convicted of armed robbery, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. We affirmed his convictions in an unpublished opinion. See Simmons v. State, No. A02A1210 (decided May 24, 2002). In 2017, Simmons filed a motion seeking an out-of-time appeal and argued that his judgment was void. The trial court denied his motion on November 6, 2017, and Simmons filed a notice of appeal on December 8, 2017. We, however, lack jurisdiction. First, Simmons’s appeal is untimely. A notice of appeal must be filed within 30 days after entry of an appealable order. 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). Here, Simmons filed his notice of appeal 32 days after the entry the trial court’s order. Second, Simmons has already had a direct appeal. “An out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal.” Kilgore v. State, 325 Ga. App. 874, 875 (1) (756 SE2d 9) (2014) (punctuation omitted). Because Simmons already has had a direct appeal, he is not entitled to an out-of-time appeal. See Richards v. State, 275 Ga. 190, 191 (563 SE2d 856) (2002) (“[T]here is no right to directly appeal the denial of a motion for out-of-time appeal filed by a criminal defendant whose conviction has been affirmed on direct appeal.”). Finally, to the extent Simmons challenges his convictions, the Supreme Court has made clear that a motion seeking to challenge an allegedly invalid or void judgment of conviction “is not one of the established procedures for challenging the

validity of a judgment in a criminal case” and that an appeal from the denial of such a motion is subject to dismissal. Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150) (2010). Thus, Simmons is not authorized to collaterally attack his conviction in this manner. See id.; Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786) (2009); Matherlee v. State, 303 Ga. App. 765, 766 (694 SE2d 665) (2010). Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 12/20/2018 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.