330 Ga. App. 711
Ga. Ct. App.2015Background
- Jaylan Davis was convicted by a Clayton County jury of burglary, criminal trespass, and obstruction of a law enforcement officer; judgment entered May 16, 2013.
- At sentencing the court advised Davis of the 30-day right to appeal and of procedures for appointed counsel; Davis was represented by retained trial counsel then.
- Davis filed a Motion for New Trial on September 11, 2013—more than 30 days after judgment—and later amended that motion three times; none of the filings explained the delay.
- The trial court denied the (amended) motion for new trial on February 25, 2014; Davis filed a Notice of Appeal on March 13, 2014.
- The Court of Appeals found the initial motion for new trial untimely and therefore void, held it did not toll the 30-day appeal period, found no record support for treating the motion as an extraordinary or out-of-time motion, and dismissed the appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Davis’s untimely motion for new trial preserved or tolled the 30-day appeal period | Davis relied on his post-judgment motion for new trial to preserve appellate rights | State argued the motion was untimely and thus void and did not toll the appeal period | Motion was untimely and void and did not toll the 30-day period; notice of appeal was therefore untimely as filed |
| Whether the untimely motion could be treated as an extraordinary motion for new trial | Davis implicitly relied on his motion as a vehicle for appellate review | State maintained no good cause was shown to excuse the delay | Court refused to construe the motion as extraordinary because no good reason for delay was shown |
| Whether Davis was entitled to an out-of-time appeal based on counsel error | Davis argued for appellate review via an out-of-time appeal remedy | State contended Davis did not seek or obtain trial-court permission showing counsel error caused the procedural default | No out-of-time appeal found—record lacks trial-court findings or consent showing appellate-rights loss due to counsel error |
| Whether parties can waive jurisdictional defects by consent to allow merits review | Davis (and possibly State) urged resolution on the merits for judicial economy | State cannot confer appellate jurisdiction by consent; parties’ agreement insufficient | Parties cannot confer jurisdiction; appellate court must dismiss for lack of jurisdiction |
Key Cases Cited
- Cody v. State, 277 Ga. 553 (timely filing of notice of appeal is jurisdictional)
- Porter v. State, 271 Ga. 498 (untimely motion for new trial is void and does not toll appeal period)
- Rowland v. State, 264 Ga. 872 (out-of-time appeal available where counsel error caused loss of appellate review)
- Washington v. State, 276 Ga. 655 (trial court may treat an out-of-time motion as both request and merits motion where record shows express recognition)
- Veasley v. State, 272 Ga. 837 (parties cannot confer appellate jurisdiction by consent)
- Deleon-Alvarez v. State, 324 Ga. App. 694 (appellate courts must address jurisdictional questions sua sponte)