Tifiloe Council v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ March 23, 2021

The Court of Appeals hereby passes the following order: A21A1131. TIFILOE COUNCIL v. THE STATE.

A jury found Tifiloe Council guilty of armed robbery, making terroristic threats, possessing a knife during the commission of a crime, fleeing or attempting to elude a police officer, and several traffic offenses, and we affirmed his convictions on appeal. Council v. State, 297 Ga. App. 96 (676 SE2d 411) (2009). He later filed an extraordinary motion for a new trial in which he challenged the sufficiency of his indictment and argued that his trial counsel rendered ineffective assistance. The trial court denied the motion in February 2021, and Council filed a direct appeal to this Court. We lack jurisdiction. An appeal from an order denying an extraordinary motion for a new trial must be initiated by filing an application for discretionary review. OCGA § 5-6-35 (a) (7), (b); Balkcom v. State, 227 Ga. App. 327, 329 (489 SE2d 129) (1997). “Compliance with the discretionary appeals procedure is jurisdictional.” Smoak v. Dept. of Human Resources, 221 Ga. App. 257, 257 (471 SE2d 60) (1996). Council’s failure to follow the discretionary appeal procedure deprives us of jurisdiction over this direct appeal. To the extent that Council’s extraordinary motion for a new trial may be construed as a motion to vacate his judgment of conviction, “a petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case,” Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786) (2009), and any appeal from an order denying or dismissing such a petition or motion must be dismissed, see

Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150) (2010); Harper, 286 Ga. at 218 (2). For each of the above reasons, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 03/23/2021 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.