Linval Rattery v. State ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 12, 2018
The Court of Appeals hereby passes the following order:
A19A0028. LINVAL RATTERY v. THE STATE.
In May 2015, Linval Rattery was convicted of improperly meeting or
overtaking a school bus. Rattery filed a timely motion for new trial, but he withdrew
that motion in exchange for a reduction in his sentence, and an addendum to his
sentence was filed in August 2015. On November 14, 2017, Rattery filed a motion for
an out-of-time motion for new trial, which the trial court denied on January 16, 2018.
On January 19, 2018, Rattery filed a second motion for an out-of-time motion for new
trial, which the trial court denied on February 6, 2018. Rattery filed a motion for
reconsideration, which the trial court denied on April 6, 2018. Finally, on May 2,
2018, Rattery filed this appeal. We lack jurisdiction.
A notice of appeal must be filed within 30 days after entry of an appealable
order. 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). Here, Rattery’s notice of appeal was filed more
than 30 days after the entry of his judgment of conviction and the denials of his
motions for an out-of-time motion for new trial. Thus, Rattery’s notice of appeal is
untimely as to these orders. Further, the denial of a motion for reconsideration is not
directly appealable, and the filing of such a motion does not extend the time for filing
an appeal. See Bell v. Cohran, 244 Ga. App. 510, 510-511 (536 SE2d 187) (2000);
Savage v. Newsome, 173 Ga. App. 271, 271-272 (326 SE2d 5) (1985). Thus, Rattery’s
notice of appeal is invalid as to the order denying his motion for reconsideration.
Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction.
To the extent that Rattery’s right to appeal has been frustrated by errors of
counsel, he may be entitled to an out-of-time appeal. See Rowland v. State, 264 Ga.
872, 875-876 (2) (452 SE2d 756) (1995). He therefore 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 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 Rattery as well as to Rattery’s attorney, who is also
DIRECTED to send a copy to Rattery.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
09/12/2018
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.