Taylor Ernest Davis v. State ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 18, 2018
The Court of Appeals hereby passes the following order:
A19A0278. TAYLOR ERNEST DAVIS v. THE STATE.
On May 10, 2017, Taylor Davis was convicted of driving under the influence
and two controlled-substance offenses. Davis filed a timely motion for a new trial,
which he subsequently withdrew. On October 2, 2017, he filed a notice of appeal.
We lack jurisdiction.
A notice of appeal must be filed within 30 days of the judgment being
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). A timely filed motion for a new trial
extends the deadline for filing a notice of appeal until 30 days after the trial court
disposes of the motion. OCGA § 5-6-38 (a). Absent a court order resolving the
motion, however, the deadline for filing a notice of appeal is not extended. Rather,
“OCGA § 5-6-38 requires a trial court order granting, denying, or otherwise finally
disposing of” a motion for a new trial to extend the time for filing a notice of appeal
more than 30 days after entry of judgment. Heard v. State, 274 Ga. 196, 197 (1) (552
SE2d 818) (2001). A unilaterally withdrawn motion for a new trial, standing alone,
does not extend the deadline for filing an appeal. See id.In this case, Davis voluntarily withdrew his motion for a new trial. The trial
court neither ruled on the motion nor granted him permission to withdraw it. The
deadline for filing his direct appeal, therefore, was not extended, and his notice of
appeal was untimely filed 145 days after the trial court entered his judgment of
conviction. See Heard, 274 Ga. at 197 (1); see also Simmons v. State, 276 Ga. 525,
525, n. 1 (579 SE2d 735) (2003). Accordingly, we have no authority to consider
Davis’s appeal, which is hereby DISMISSED for lack of jurisdiction.
Because Davis was represented by counsel before the trial court, he is informed
of the following in accordance with Rowland, 264 Ga. at 875-876 (2): This appeal has
been dismissed because you failed to file a proper and timely notice of appeal. 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 Davis and to
his attorney, and the latter also is DIRECTED to send a copy to Davis.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
09/18/2018
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.