Edwаrd Hood was convicted in 2003 of armed robbery, kidnapping, and felony and misdemeanor obstruction of an officer. In affirming his convictions on appeal, the Court of Appeals concluded it was unable to review the trial court’s determination that Hood had not been deprived of his right to effective assistance of counsel at trial because Hood had not raised the issue of ineffеctive assistance of trial counsel at the earliest opportunity.
Hood v. State,
“It is a requisite of a sound system of criminal justiсe, serving alike the proper ends of defendants and the public, that any contention concerning the violation of the constitutional right of counsel should be made at the earliest praсticable moment.”
Smith v. State,
*463
Hood raised the issue of ineffective assistance of counsel in а pro se motion for new trial received by the trial court clerk’s office on March 5, 2004, with a pro se notice of appeal and a letter from Hood to the trial judge. The clerk filed the notice of appeal and the letter, but returned the motion for new trial to Hood for a signature. The clerk filed the motion when Hood returned the signed motion on March 12, nearly seven months after thе judgment of conviction was entered against Hood. 1 For the reasons that follow, we conclude *464 Hood’s pro se motion for new trial should have been filed when it was initially received on March 5; that filing was timely since it took place within 30 days of thе filing of the trial court’s grant of an out-of-time appeal to Hood; and Hood’s simultaneously-filed notice of appeal did not divest the trial court of jurisdiction to rule on the motion for new trial and the amendments thereto.
The duties of the clerk relating to the filing of pleadings are ministerial in nature, and “ ‘[i]t is the official duty of the clerk of a court to file all papers in a cause presеnted by the parties, and to mark them filed, with the date of filing. (Cits.)’ [Cit.] ‘A paper is said to be filed, when it is delivered to the proper officer, and by [that officer] received, to be kept on file.’ [Cit.]”
Forsyth v. Hale,
The clerk did not file the motion for new trial because it was not signed by Hood or counsel representing Hood. Amotion filed in a civil case is statutorily required to bear the signature of an аttorney or of the party if the party is not represented by an attorney (OCGA §§ 9-11-7 (b) (2); 9-11-11 (a)), and a motion filed in superior court in a civil or criminal matter must, by rule, “bear the signature of the responsible attorney оr party who prepared the document. . . .” Uniform Superior Court Rule 36.4. In construing the statutory signature requirement, this Court and the Court of Appeals have held that the lack of a signature is an amendable dеfect and does not render the unsigned document null and void.
Edwards v. Edwards,
*465
Hood’s unsigned motion for new trial should have been filed on March 5 and such filing would havе been timely since it was within the 30-day period following the filing on February 6 of the order granting Hood an out-of-time appeal. The filing of Hood’s pro se notice of appeal on the same day as the motion for new trial did not divest the trial court of jurisdiction since
such divestiture does not become effective during the period of time in which a motion for new trial may be filed. In the event a motion for new trial is timely filed as provided in OCGA § 5-5-40 . . . , the effectiveness of the divestiture is then delayed until the motion for new trial is ruled upon and a notice of appeal to the ruling has been filed or the period for appealing the ruling has expired.
Housing Auth. of Atlanta v. Geter,
Inasmuch as Hood’s motion for new trial was timely filed and he raised the issue of ineffective assistance of trial counsel at the earliest practicable moment, the Court of Appeals erred when it determined it could not consider that portion of Hood’s appeal in which he took issue with the trial court’s finding that trial counsel was not ineffective. Accordingly, we vacate Division 1 of the opinion of the Court of Appeals and remand the case to that court for further proceedings not inconsistent with this opinion.
Judgment vacated in part and case remanded with direction.
Notes
Hood’s trial counsel filed a timely motion for new trial in August 2003, filed a motion to withdraw from representation in October 2003, and filed a motion to strike the motion for new trial (and an amendment thereto) in November 2003. The trial court granted the motions to withdraw and to strike on December 1,2003. Because more than 30 days had elapsed since the entry of the judgment of conviction, the striking of the amended motiоn for new trial left Hood without an avenue of direct appeal. At a hearing held on January 14, 2004, the trial court informed Hood that the motion for new trial had been withdrawn. In an effort to “clear it up,” thе trial court instructed the assistant district attorney to prepare an order which gave Hood 60 days from the date of the hearing (i.e. until March 15, 2004) to retain appellate counsel and to file a motion for new trial. The signed “order on out-of-time motion for new trial” was filed February 6,2004, giving Hood 38 days from the date of filing to retain counsel and file a motion for new trial. Despite the attempt of the triаl court to reinstate Hood’s direct-appeal means of post-conviction relief, once the trial court effectively granted Hood an out-of-time appeal the *464 trial court was without authority to give Hood more than 30 days from the grant of the out-of-time appeal to file a motion for new trial. OCGA § 5-6-39 (b) (“No extension of time shall be granted for the filing of motions for new trial or for judgmеnt notwithstanding the verdict.”). In light of the critical and time-sensitive nature of the grant of an out-of-time appeal, a court should take care that a defendant is in a position to comply with the stringent tеmporal deadlines before granting an out-of-time appeal.
The trial court clerk’s office did not send the appellate record to the Court of Appeals pursuant to the notice of appeal filed March 5, 2004. Rather, the record reached the appellate court in March 2005 pursuant to the timely notice of appeal filed after the trial court held a hearing on Hood’s contention of ineffective assistance of trial counsel and denied Hood’s amended motion for new trial on December 20, 2004. In June 2005, the Court of Appeals remanded the case to the trial court to look into purported omissions from the transcript of the hearing on the motion for new trial. The trial court conducted a hearing on the topic and, on December 9, 2005, filed an order supplementing the appellate record previously sent to the *466 Court of Appeals. A notice of appeal filed December 19, 2005, resulted in the docketing of the present appeal in the Court of Appeals.