John A. Frilando v. Rimina Z. Lewis ( 2015 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
March 26, 2015
The Court of Appeals hereby passes the following order:
A15A1375. JOHN A. FRILANDO v. RIMINA Z. LEWIS et al.
John A. Frilando, a prison inmate, filed a civil action against Rimina Lewis and
Kevin Robinson. On June 30, 2014, the trial court entered a judgment and decree
denying Frilando’s requested relief. On August 18, 2014, he filed a motion for new
hearing. The trial court denied the motion, and on December 4, 2014, Frilando filed
a notice of direct appeal to this Court. We lack jurisdiction for two reasons.
First, the notice of appeal is untimely. To be timely, a notice of appeal must
be filed within 30 days of the entry of an appealable judgment. OCGA § 5-6-38 (a).
Although the filing of a motion for new trial generally extends the deadline for filing
a notice of appeal, an untimely motion for new trial is void and does not extend the
time for filing an appeal. See Wicks v. State, 277 Ga. 121 (587 SE2d 21) (2003). To
be timely, a motion for new trial must “be made within 30 days of the entry of the
judgment.” OCGA § 5-5-40 (a). Because Frilando filed his motion 49 days after
entry of the final order, it did not extend the deadline for Frilando to appeal.
Second, because Frilando is incarcerated, his appeal is controlled by the Prison
Litigation Reform Act of 1996, OCGA § 42-12-1 et seq. Under OCGA § 42-12-8, an
appeal of a civil action filed by a prisoner “shall be as provided in Code Section 5-6-
35.” And under OCGA § 5-6-35, the party wishing to appeal must file an application
for discretionary appeal to the appropriate appellate court. Because a prisoner has no
right of direct appeal in civil cases, we lack jurisdiction to consider this direct appeal
from the trial court’s order. See Jones v. Townsend, 267 Ga. 489 (480 SE2d 24)
(1997). This appeal is therefore DISMISSED.
Court of Appeals of the State of Georgia
03/26/2015
Clerk’s Office, Atlanta,____________________
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.