Donald Harris, Jr. v. State, A17A0407

Donald Harris, Jr. was convicted by a jury of aggravated assault and possession of a firearm by a convicted felon; judgment entered December 10, 2015.
Harris filed a motion for new trial on January 12, 2016 (33 days after the judgment) and the trial court denied the motion on August 19, 2016.
Harris filed a notice of appeal on September 7, 2016, which the Court of Appeals found untimely.
Georgia law requires a notice of appeal within 30 days of an appealable judgment; a timely motion for new trial can extend that deadline.
An untimely motion for new trial is void and does not extend the appeal deadline; Harris’s motion was untimely because it was filed after 30 days and he did not obtain trial-court permission to file an out-of-time motion.
The Court of Appeals dismissed the appeal for lack of jurisdiction and informed Harris of the procedure to seek permission for an out-of-time appeal from the trial court.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the appeal was timely	Harris presumably asserts his new-trial motion extended the appeal period	State argues the motion was untimely and therefore did not extend the appeal period	Appeal dismissed for lack of jurisdiction because notice was untimely
Whether a motion for new trial filed after 30 days can extend appeal time	Harris relied on post-judgment motion to preserve appeal rights	State maintained OCGA requires new-trial motion within 30 days; otherwise void	Court held an untimely new-trial motion is void and does not extend appeal time
Whether Harris could rely on an out-of-time motion without trial-court permission	Harris did not show he sought leave to file out-of-time motion	State noted absence of trial-court permission in record	Court noted defendant may seek permission from trial court to file out-of-time motion but record shows no such request
Remedy available after dismissal for untimeliness	Harris seeks appellate review	State points to procedure to seek leave for out-of-time appeal	Court explained procedure: petition trial court for leave; if granted, 30 days from that order to appeal; if denied, 30 days to appeal that denial

Rowland v. State, 264 Ga. 872 (absolute requirement of timely notice of appeal to confer appellate jurisdiction)
Wicks v. State, 277 Ga. 121 (untimely motion for new trial is void and does not extend appeal deadline)
Peters v. State, 237 Ga. App. 625 (appeal dismissed where postjudgment motion was untimely)
Washington v. State, 276 Ga. 655 (defendant may seek trial-court permission to file out-of-time motion for new trial)