Lagarrian O'Brian Clark v. State ( 2017 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
February 16, 2017
The Court of Appeals hereby passes the following order:
A17A0992. LAGARRIAN O’BRIAN CLARK v. THE STATE.
Lagarrian O’Brian Clark pled guilty to burglary, aggravated assault, and
criminal damage to property in 2006. In 2009, he filed a pro se motion for an out-of-
time appeal, which the trial court denied on March 20, 2009. Clark did not appeal that
order. Clark subsequently filed another pro se motion for out-of-time appeal. On
December 9, 2016, the trial court denied Clark’s second motion, finding that his
motion raised the same issues regarding ineffective assistance of counsel and
sufficiency of his guilty plea as his first motion for out-of-time appeal. Clark filed this
direct appeal from that ruling. We lack jurisdiction.
Although a criminal defendant may directly appeal from a trial court order
denying his request for an out-of-time appeal, a notice of appeal must be filed within
30 days after entry of an appealable order. See OCGA § 5-6-38 (a). Thus, if Clark
had filed a timely appeal from the March 20, 2009 order denying his initial motion
for an out-of-time appeal, we would have accepted the direct appeal. However, as the
trial court indicated, Clark’s subsequent motion for an out-of-time appeal is merely
a renewal of his original motion. In essence, it is a motion for reconsideration of the
original order. And the denial of a motion for reconsideration is not directly
appealable and does not extend the time for appealing the underlying judgment. Bell
v. Cohran, 244 Ga. App. 510, 511 (536 SE2d 187) (2000). Clark’s December 30,
2016 notice of appeal, therefore, is untimely as to the March 20, 2009 order denying
his motion for an out-of-time appeal and invalid as to the order denying his “second”
motion for out-of-time appeal requesting the court to reconsider his first motion.
Accordingly, we lack jurisdiction to consider this appeal, which is hereby
DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
02/16/2017
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.