Andrew Hughes v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ August 12, 2019

The Court of Appeals hereby passes the following order: A19A2448. ANDREW HUGHES v. THE STATE.

In January 2019, Andrew Hughes entered negotiated guilty pleas to two controlled substance offenses and possession of tools for the commission of a crime, and the trial court imposed a total sentence of 15 years in prison, to be followed by 15 years on probation. The record contains no indication that Hughes filed a direct appeal from his judgment of conviction. Hughes subsequently filed a motion to vacate a void sentence, which the trial court denied in an order entered on April 2, 2019. On May 13, 2019, Hughes filed a notice of appeal.1 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). Hughes’s notice of appeal was untimely filed 41 days after entry of the order sought to be appealed. Consequently, we lack jurisdiction over Hughes’s appeal, which is hereby DISMISSED. Because Hughes was represented by counsel before the trial court, he is informed of the following in accordance with Rowland, 264 Ga. at 875-876 (2): This appeal has been dismissed because you failed to file a proper and timely notice of

1 Hughes entitled this filing “Motion to Appeal.” We construe the filing, as did the trial court, as a notice of appeal. See OCGA § 5-6-37; Planet Ins. Co. v. Ferrell, 228 Ga. App. 264, 266 (491 SE2d 471) (1997) (“[P]leadings, motions and orders are to be construed according to their substance and function and not merely as to their nomenclature . . . .”).

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 Hughes and to his attorney, and the latter also is DIRECTED to send a copy to Hughes.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 08/12/2019 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.