Antwan Creighton v. State
A17D0177
| Ga. Ct. App. | Dec 28, 2016Background
- Creighton was convicted of multiple offenses including armed robbery, attempted armed robbery, first-degree burglary, and related firearms and obstruction charges.
- He filed a timely motion for new trial, which the trial court denied on October 7, 2016.
- Creighton signed an application for discretionary appeal on November 1, 2016, and the Court of Appeals received/filed it on November 18, 2016.
- The Court of Appeals determined the application was filed 42 days after the trial-court order and thus untimely under the 30-day filing rule for discretionary review of directly appealable orders.
- Because the application was untimely, the Court dismissed it for lack of jurisdiction but informed Creighton about the possibility of pursuing an out-of-time appeal.
- The court advised that Creighton, being incarcerated and potentially without counsel, may seek appointment of appellate counsel and petition the trial court for leave to file an out-of-time appeal; procedural timelines for such relief were explained.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of discretionary-appeal application | Creighton signed the application within 30 days of the order | The application was not filed in the Court within 30 days | Application untimely; dismissed for lack of jurisdiction |
| Availability of direct appeal after denial of new trial | Motion for new trial denial is directly appealable | N/A (court applies statute/case law) | Denial is directly appealable, but discretionary application must meet filing deadline |
| Excuse for delay due to incarceration | Creighton hampered by incarceration; signed earlier | Court requires filing, not just signature date | Incarceration noted but did not cure untimeliness; recommends seeking counsel for out-of-time appeal |
| Remedy for failure to timely file | Creighton seeks appellate review despite dismissal | Court: may seek out-of-time appeal from trial court | Court dismissed appeal but instructed on procedure to petition for out-of-time appeal |
Key Cases Cited
- Martin v. Williams, 263 Ga. 707 (1994) (denial of a motion for new trial is directly appealable)
- Hill v. State, 204 Ga. App. 582 (1992) (discretionary application must be filed within 30 days to invoke rule granting review)
- Merriweather v. Chatman, 285 Ga. 765 (2003) (defendant has a right to appellate counsel; right may be waived after proper advisal)
- Simmons v. State, 276 Ga. 525 (2003) (out-of-time appeal is a judicial remedy for a frustrated right of appeal)