Ayonna Celeste Jenkins v. State
A17A1814
| Ga. Ct. App. | Jul 4, 2017Background
- Jenkins was convicted after a bench trial of leaving the scene of an accident and improper passing; judgment entered November 7, 2016.
- Jenkins filed a pro se notice of appeal on December 1, 2016 (after the 30-day appeal deadline).
- On January 5, 2017, appellate counsel entered, withdrew the pro se notice of appeal, and filed a motion for new trial.
- The trial court denied the motion for new trial on March 30, 2017.
- Counsel filed a notice of appeal on April 14, 2017; the Court of Appeals found it lacked jurisdiction because the post-judgment filings were untimely and did not revive the original appeal period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a timely notice of appeal was filed | Jenkins relied on the December 1 pro se filing | State argued no timely appeal was perfected | No — the December 1 filing was untimely under OCGA § 5-6-38(a) relative to the Nov. 7 judgment |
| Whether filing a motion for new trial after the 30-day period tolls appeal time | Jenkins (via counsel) treated the post-judgment motion as extending appeal time | State argued the motion was untimely and therefore void, so it did not extend the appeal period | The motion for new trial was untimely under OCGA § 5-5-40(a) and thus void; it did not extend appeal time (Wicks) |
| Whether counsel could withdraw the initial notice and substitute an untimely motion without court leave | Jenkins’ counsel withdrew the notice and filed motion without seeking leave | State argued leave was required to file an out-of-time motion/new-trial motion | Court held counsel should have obtained leave; without leave the attempt to convert filings was ineffective and appeal was untimely |
| Remedy for untimely appeal | Jenkins may seek trial-court permission for an out-of-time appeal | State maintains dismissal is appropriate absent granted leave | Appeal dismissed for lack of jurisdiction; Jenkins may petition trial court for leave to file an out-of-time appeal and, if granted, then has 30 days to appeal |
Key Cases Cited
- Rowland v. State, 264 Ga. 872 (defendant must file timely notice of appeal; timely filing is jurisdictional)
- Wicks v. State, 277 Ga. 121 (an untimely motion for new trial is void and does not extend the time to appeal)
- Washington v. State, 276 Ga. 655 (trial court may grant leave to file an out-of-time motion for new trial)
- Peters v. State, 237 Ga. App. 625 (counsel’s untimely motion/new-trial practice does not cure lack of timely appeal)