Shannon Bradley v. State ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 23, 2018
The Court of Appeals hereby passes the following order:
A19A0090. SHANNON BRADLEY v. THE STATE.
In 2009, a jury found Shannon Bradley guilty of five counts each of armed
robbery and aggravated assault with intent to rob and one count of possession of a
firearm during the commission of a felony. The trial court merged the armed robbery
convictions with the aggravated assault convictions and imposed a total sentence of
life in prison without the possibility of parole. We affirmed Bradley’s judgment of
conviction on direct appeal in an unpublished opinion. See Bradley v. State,
No. A12A0526 (May 9, 2012).
In November 2017, Bradley filed two motions seeking to challenge the legality
of his convictions: a motion to set aside judgment and a motion in arrest of judgment.
The trial court denied both motions in a single order entered on November 22, 2017.
The court’s November 22 order also directed the trial court clerk not to accept any
further filings in this case. On April 10, 2018, Bradley filed a “Notice of Out of Time
Appeal,” seeking review of the trial court’s November 22 order.1 We lack
jurisdiction.
1
Bradley’s “Notice of Out of Time Appeal” is dated February 22, 2018, but
was not filed in the trial court until April 10, 2018. In his “Notice of Out of Time
Appeal,” Bradley indicates that he first learned in January or February 2018 that his
November 2017 motions had been denied. If, as he appears to suggest, his right to
timely seek appellate review was frustrated due to a trial court error, his remedy is to
petition the trial court to vacate and re-enter the order at issue in the manner described
in Cambron v. Canal Ins. Co., 246 Ga. 147, 148-149 (1) (269 SE2d 426) (1980).
Pretermitting whether a direct appeal may lie from the trial court’s November
22 order, a notice of appeal must be filed within 30 days of entry of the order sought
to be appealed. OCGA § 5-6-38 (a). The proper and timely filing of a notice of
appeal is an absolute requirement to confer jurisdiction on this Court. Rowland v.
State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Bradley’s “Notice of Out of
Time Appeal” is untimely, as it was filed 139 days after entry of the order he seeks
to appeal. To the extent that Bradley seeks an out-of-time appeal, (a) any such
request must be directed to the trial court, see Gulledge v. State, 276 Ga. 740, 742
(583 SE2d 862) (2003), and (b) regardless, an out-of-time appeal is not available to
a criminal defendant who already has had a direct appeal, see Richards v. State, 275
Ga. 190, 191 (563 SE2d 856) (2002). Consequently, this untimely appeal is hereby
DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/23/2018
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.