Billy Tharpe Pierce v. State ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 02, 2018
The Court of Appeals hereby passes the following order:
A18A1920. BILLY THARPE PIERCE v. THE STATE.
In 2011, Billy Tharpe Pierce pled guilty to two counts of aggravated assault and
one count of cruelty to children in the first degree, and the trial court sentenced him
to a total of 60 years’ imprisonment. This Court affirmed his convictions on direct
appeal. See Pierce v. State, Case No. A12A0269 (affirmed May 11, 2012). Recently,
Pierce filed a motion for an out-of-time appeal, which the trial court denied on
December 13, 2017. Pierce then filed this appeal on February 23, 2018.1 We lack
jurisdiction for two reasons.
First, Pierce’s appeal is untimely. To be timely, a notice of appeal must be filed
within 30 days of entry of the order sought to be appealed. See 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. See Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756)
(1995). Because Pierce filed his notice of appeal 72 days after entry of the trial court’s
order, it is untimely.
Second, “[a]n 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). Because Pierce 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.”).
1
Pierce directed his appeal to the Supreme Court, which transferred the case
here. See Pierce v. State, Case No. S18A1111 (transferred May 7, 2018).
Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/02/2018
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.