James Burl Hindman v. State ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 03, 2018
The Court of Appeals hereby passes the following order:
A18A2014. JAMES BURL HINDMAN v. THE STATE.
James Burl Hindman was convicted of armed robbery, eight counts of
aggravated assault, theft by taking, possession of a firearm during the commission of
a crime, and possession of a firearm by a convicted felon, and we affirmed his
convictions on appeal. Hindman v. State, 234 Ga. App. 758 (507 SE2d 862) (1998).
In February 2018, Hindman filed a pro se motion seeking an order to allow him an out-
of-time appeal. On April 4, 2018, the trial court denied the motion on the ground that
Hindman was not entitled to a second direct appeal. Hindman then filed this notice of
appeal on May 4, 2018. We, however, lack jurisdiction for two reasons.
First, as noted by the trial court in its order, “[a]n out-of-time appeal is a judicial
creation that serves as the remedy for a frustrated right of appeal. . . . [I]t is not a
remedy available to a criminal defendant whose conviction has been reviewed by an
appellate court on direct appeal since that defendant is not entitled to a second direct
appeal from his judgment of conviction.” Milliken v. State, 259 Ga. App. 144, 145
(575 SE2d 910) (2003) (punctuation omitted). Accordingly, Hindman’s appeal from
the denial of his motion for out-of-time appeal must be dismissed. See Brown v.
State, 296 Ga. App. 224 (674 SE2d 91) (2009) (dismissing appeal from denial of
motion for out-of- time appeal because defendant “has already had a direct appeal, and
raises no arguments now that he could not have raised then”).
Second, under OCGA § 5-6-38 (a), a notice of appeal must be filed within 30
days after entry of the appealable order. The proper and timely filing of a notice of
appeal is an absolute requirement to confer jurisdiction on this Court. Rocha v. State,
287 Ga. App. 446 (1) (a) (651 SE2d 781) (2007). Here, Hindman filed his notice of
appeal 34 days after the order was entered.
For these reasons, we hereby DISMISS this appeal.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/03/2018
I certify that the abov e 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.