Case Information
*1 Court of Appeals
of the State of Georgia
ATLANTA,____________________ October 18, 2016 The Court of Appeals hereby passes the following order: A17A0407. DONALD HARRIS, JR. v. THE STATE.
A jury found Donald Harris, Jr., guilty of aggravated assault and possession of a firearm by a convicted felon, and the trial court entered his judgment of conviction on December 10, 2015. On January 12, 2016, Harris filed a motion for a new trial, which the trial court denied on August 19, 2016. Harris filed a notice of appeal on September 7, 2016. We lack jurisdiction.
A notice of appeal must be filed within 30 days of the entry of an appealable judgment. OCGA § 5-6-38 (a). The proper and timely filing of the notice of appeal is an absolute requirement to confer appellate jurisdiction on this Court. Rowland v. State , 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Although the filing of a motion for a new trial generally extends the deadline for filing a notice of appeal, see OCGA § 5-6-38 (a), an untimely motion for a new trial is void and does not extend the time for filing an appeal, Wicks v. State , 277 Ga. 121, 121-122 (587 SE2d 21) (2003). To be timely, a motion for a new trial must be made “within 30 days of the entry of the judgment on the verdict.” OCGA § 5-5-40 (a). [1]
*2 Harris’s motion for a new trial, which he filed 33 days after entry of his judgment of conviction, was untimely and did not extend the time for filing the notice of appeal. See Wicks , 277 Ga. at 121-122. Under these circumstances, Harris’s appeal is untimely and is therefore DISMISSED for lack of jurisdiction. See Peters v. State , 237 Ga. App. 625, 625 (516 SE2d 331) (1999).
Because Harris is represented by counsel, he is informed of the following in accordance with Rowland v. State , 264 Ga. at 875-876: This appeal has been dismissed because you failed to file a timely notice of appeal from your judgment of
conviction. If you still wish to appeal, you may petition the trial court for leave to file an out-of-time appeal. If the trial court grants your request, you will have 30 days from the entry of that order to file a notice of appeal referencing your conviction. If the trial court denies your request, you will have 30 days from the entry of that order to file a notice of appeal referencing the denial of your request for an out-of-time appeal.
The Clerk of Court is DIRECTED to send a copy of this order to Harris and to his attorney, and the latter also is DIRECTED to send a copy to Harris.
Court of Appeals of the State of Georgia 10/18/2016 Clerk’s Office, Atlanta,____________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk. not show that Harris sought permission to file an out-of-time motion.
[1] A defendant may obtain permission from the trial court to file an out-of-time motion for a new trial, the denial of which may be appealed directly. See Washington v. State , 276 Ga. 655, 656 (1) (581 SE2d 518) (2003). Here, however, the record does
