Kenneth Trusty v. State ( 2016 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 08, 2016
The Court of Appeals hereby passes the following order:
A17A0680. KENNETH TRUSTY v. THE STATE.
Kenneth Trusty was convicted of rape, aggravated sodomy, armed robbery, two
counts of burglary, false imprisonment, possession of a firearm during the
commission of a crime, possession of a firearm by a convicted felon, and battery. We
affirmed his convictions on appeal. See Trusty v. State, Case No. A13A0851
(affirmed Oct. 11, 2013). In October 2015, Trusty filed an extraordinary motion for
new trial, which the trial court denied on August 9, 2016. On September 16, 2016,
Trusty filed a notice of appeal of the denial. However, we lack jurisdiction for two
reasons.
First, Trusty failed to file an application for discretionary appeal as required.
Under OCGA § 5-6-35 (a) (7), appeals from the denial of an extraordinary motion for
new trial must comply with the discretionary appeal procedure. Balkcom v. State, 227
Ga. App. 327, 329 (489 SE2d 129) (1997). Trusty’s failure to comply with the
discretionary appeal procedure deprives us of jurisdiction over this appeal.
Second, even if Trusty had a right of direct appeal here, this appeal is untimely.
A notice of appeal must be filed within 30 days of entry of the trial court 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). Trusty’s notice of appeal is
untimely, as he filed it 38 days after entry of the trial court order he seeks to appeal.
For the above reasons, this appeal is hereby DISMISSED for lack of
jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
12/08/2016
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.