Jose D. Reyes v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ April 07, 2022

The Court of Appeals hereby passes the following order: A22A0014, A22A0015. JOSE D. REYES v. THE STATE.

In 2016, Jose Reyes pled guilty to two counts of statutory rape (OCGA § 16-6- 3) and two counts of aggravated child molestation (OCGA § 16-6-4 (c)), and the trial court imposed a 20-year sentence, with the first 12 years to be served in prison and the remainder to be served on probation. On November 16, 2018, Reyes filed a motion for out-of-time appeal, which the trial court denied. Reyes subsequently filed a notice of appeal, and this Court remanded the case so a transcript of the hearing on Reyes’s motion for out-of-time appeal could be added to the record.

Reyes has now filed an out-of-time notice of appeal,1 and the trial court transmitted the record. We, however, lack jurisdiction over this appeal.

A notice of appeal must be filed within 30 days of entry of the order sought to be appealed. OCGA § 5-6-38 (a). “[A] timely-filed notice of appeal is a jurisdictional prerequisite to a valid appeal.” Henderson v. State, 265 Ga. 317 (1) (454 SE2d 458) (1995). Here, Reyes filed his notice of appeal more than two years after the entry of the trial court’s order on his guilty plea and sentence. Although Reyes purported to file an out-of-time appeal, the Supreme Court has made clear that an out-of-time

1 On July 20, 2021, this Court docketed case A22A0014 and case A22A0015, both of which arose from Reyes’s conviction and rested on the same underlying facts. Because these cases arose from the same set of facts and the same ruling by the trial court, this Court granted the state’s motion to consolidate cases on October 22, 2021.

appeal is not a viable remedy in a criminal case. See Cook v. State, ___ Ga. ___, ___ (5) (Case No. S21A1270, decided March 15, 2022).

Because the trial court was without jurisdiction to decide Reyes’s motion for out-of-time appeal in this case, we VACATE the trial court’s order and REMAND with instructions to dismiss the motion.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 04/07/2022 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.