Ayonna Celeste Jenkins v. State ( 2017 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 23, 2017
The Court of Appeals hereby passes the following order:
A17A1814. AYONNA CELESTE JENKINS v. THE STATE.
Following a bench trial, the trial court found Ayonna Celeste Jenkins guilty of
leaving the scene of an accident and improper passing. The trial court entered its
judgment of conviction and sentence on November 7, 2016, and Jenkins filed a pro
se notice of appeal of the judgment on December 1, 2016. On January 5, 2017,
Jenkins’s appellate counsel entered an appearance on her behalf, withdrew the notice
of appeal, and filed a motion for new trial. The trial court denied the motion for new
trial on March 30, 2017, and Jenkins, through counsel, filed a notice of appeal on
April 14, 2017. 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).
A defendant may obtain permission from the trial court to file an out-of-time
motion for new trial. See Washington v. State, 276 Ga. 655, 656 (1) (581 SE2d 518)
(2003). Here, however, the record shows that Jenkins’s attorney withdrew the notice
of appeal and filed an untimely motion for new trial without first obtaining leave of
the court to do so. Under these circumstances, Jenkins’s appeal is untimely and is
therefore DISMISSED. See Peters v. State, 237 Ga. App. 625, 625 (516 SE2d 331)
(1999).
Because Jenkins is represented by counsel, she 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 Jenkins and
to her attorney, and the latter also is DIRECTED to send a copy to Jenkins.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
06/23/2017
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.