James Russell Simmons v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 20, 2018
The Court of Appeals hereby passes the following order:
A19A0643. JAMES RUSSELL SIMMONS v. THE STATE.
In 2001, James Russell Simmons was convicted of armed robbery, possession
of a firearm during the commission of a crime, and possession of a firearm by a
convicted felon. We affirmed his convictions in an unpublished opinion. See
Simmons v. State, No. A02A1210 (decided May 24, 2002). In 2017, Simmons filed
a motion seeking an out-of-time appeal and argued that his judgment was void. The
trial court denied his motion on November 6, 2017, and Simmons filed a notice of
appeal on December 8, 2017. We, however, lack jurisdiction.
First, Simmons’s appeal is untimely. 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,
Simmons filed his notice of appeal 32 days after the entry the trial court’s order.
Second, Simmons has already had a direct appeal. “An out-of-time appeal is
a judicial creation that serves as the remedy for a frustrated right of appeal.” Kilgore
v. State, 325 Ga. App. 874, 875 (1) (756 SE2d 9) (2014) (punctuation omitted).
Because Simmons already has had a direct appeal, he is not entitled to an out-of-time
appeal. See Richards v. State, 275 Ga. 190, 191 (563 SE2d 856) (2002) (“[T]here is
no right to directly appeal the denial of a motion for out-of-time appeal filed by a
criminal defendant whose conviction has been affirmed on direct appeal.”).
Finally, to the extent Simmons challenges his convictions, the Supreme Court
has made clear that a motion seeking to challenge an allegedly invalid or void
judgment of conviction “is not one of the established procedures for challenging the
validity of a judgment in a criminal case” and that an appeal from the denial of such
a motion is subject to dismissal. Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150)
(2010). Thus, Simmons is not authorized to collaterally attack his conviction in this
manner. See id.; Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786) (2009);
Matherlee v. State, 303 Ga. App. 765, 766 (694 SE2d 665) (2010).
Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
12/20/2018
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.