Sean Ryan O'Malley v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ April 06, 2022

The Court of Appeals hereby passes the following order: A22A0293. SEAN RYAN O’MALLEY v. THE STATE.

A jury found Sean O’Malley guilty on three counts of child molestation, and the trial court entered sentence on January 8, 2016. O’Malley filed a motion for new trial on February 15, 2016, which the trial court denied on October 28, 2020. O’Malley filed a notice of appeal on November 6, 2020 from the trial court’s denial of his motion for new trial. This Court dismissed O’Malley’s appeal for a lack of jurisdiction.

On September 2, 2021, O’Malley filed an out-of-time notice of appeal, 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). Although the filing of a motion for new trial generally extends the deadline for filing a notice of appeal, such motion is not valid unless filed within 30 days after the entry of judgment. See Wright v. Rhodes, 198 Ga. App. 269 (401 SE2d 21) (2003). Because O’Malley did not file a motion for new trial within 30 days after entry of the judgment of conviction, the motion did not extend the appeal deadline. Although O’Malley purported to file an out-of-time appeal, the Supreme Court has made clear that an out-of-time 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 O’Malley’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,____________________ 04/06/2022 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.