Kevin Upkins v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ December 01, 2020

The Court of Appeals hereby passes the following order: A21A0685. KEVIN UPKINS v. THE STATE.

In February 2010, Kevin Tramell Upkins was convicted by a jury of armed robbery. Upkins filed a timely motion for new trial, which was denied by the trial court in October 2013. Upkins appealed. This court affirmed Upkins’s conviction in an unpublished opinion. Upkins v. State, Case No. A14A1952 (decided March 25, 2015). Then, in November 2018, Upkins filed a pro se motion for new trial. The trial court denied the motion, and Upkins filed a direct appeal. We noted that based on the procedural posture of the case, Upkins’s motion for new trial must be construed as an extraordinary motion for new trial and dismissed the appeal based on Upkins’s failure to follow the discretionary appeal procedure. Upkins v. State, Case No. A19A1566 (dismissed March 18, 2019). Upkins subsequently filed yet another motion for new trial, and the trial court denied the motion. Upkins then filed this direct appeal. The State has filed a motion to dismiss the appeal. We lack jurisdiction. As with his last motion for new trial, Upkins’s most recent motion must be construed as an extraordinary motion for new trial because it was filed after the trial court denied his first motion for new trial and nine years after the judgment of conviction. See OCGA § 5-5-41 (b); Jeffcoat v. State, 299 Ga. App. 54, 54 (682 SE2d 131) (2009); see also OCGA § 5-5-40 (a). An appeal from the denial of an extraordinary motion for new trial requires compliance with the discretionary appeal procedure set forth in OCGA § 5-6- 35. See OCGA § 5-6-35 (a) (7); Balkcom v. State, 227 Ga. App. 327, 331-332 (489 SE2d 129) (1997). “The requirements of OCGA § 5-6-35 are jurisdictional, and this court cannot accept an appeal not made in compliance therewith.” Boyle v. State, 190 Ga. App. 734, 734 (380 SE2d 57) (1989).

Upkins’s failure to file an application for a discretionary appeal deprives us of jurisdiction over this direct appeal. The State’s motion to dismiss is hereby GRANTED, and this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 12/01/2020 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.