Diamanta R. Hunter v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ April 23, 2019

The Court of Appeals hereby passes the following order: A19A1773. DIAMANTA R. HUNTER v. THE STATE.

A jury found Diamanta R. Hunter guilty of conspiracy to purchase marijuana, and on July 19, 2017, the trial court entered a judgment of conviction and sentence. On August 22, 2017, Hunter filed a motion for new trial, which the trial court subsequently denied. Hunter now 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). Hunter’s motion for a new trial, filed 34 days after entry of her 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, Hunter’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). To the extent that Hunter’s right to appeal has been frustrated by errors of counsel, she may be entitled to an out-of-time appeal. See Rowland, 264 Ga. at 875- 876 (2) . She 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 Hunter as well as to Hunter’s attorney, who is also DIRECTED to send a copy to Hunter.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 04/23/2019 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.