Andrew Hughes v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 12, 2019
The Court of Appeals hereby passes the following order:
A19A2448. ANDREW HUGHES v. THE STATE.
In January 2019, Andrew Hughes entered negotiated guilty pleas to two
controlled substance offenses and possession of tools for the commission of a crime,
and the trial court imposed a total sentence of 15 years in prison, to be followed by
15 years on probation. The record contains no indication that Hughes filed a direct
appeal from his judgment of conviction. Hughes subsequently filed a motion to
vacate a void sentence, which the trial court denied in an order entered on April 2,
2019. On May 13, 2019, Hughes filed a notice of appeal.1 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 a 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). Hughes’s notice of appeal was
untimely filed 41 days after entry of the order sought to be appealed. Consequently,
we lack jurisdiction over Hughes’s appeal, which is hereby DISMISSED.
Because Hughes was represented by counsel before the trial court, he is
informed of the following in accordance with Rowland, 264 Ga. at 875-876 (2): This
appeal has been dismissed because you failed to file a proper and timely notice of
1
Hughes entitled this filing “Motion to Appeal.” We construe the filing, as did
the trial court, as a notice of appeal. See OCGA § 5-6-37; Planet Ins. Co. v. Ferrell,
228 Ga. App. 264, 266 (491 SE2d 471) (1997) (“[P]leadings, motions and orders are
to be construed according to their substance and function and not merely as to their
nomenclature . . . .”).
appeal. 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 Hughes and
to his attorney, and the latter also is DIRECTED to send a copy to Hughes.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/12/2019
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.