Kinyon Newell v. State ( 2014 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 08, 2014
The Court of Appeals hereby passes the following order:
A14A2251. NEWELL v. THE STATE.
The captioned case was docketed in this Court on August 8, 2014. Under the
rules of this Court, Appellant’s brief and enumeration of errors were due to be filed
no later than August 28, 2014. Court of Appeals Rule 23 (a). Appellant did not
timely file a brief and enumeration of errors, nor did Appellant timely request that the
time for filing be extended.
On September 12, 2014, Appellant filed an untimely motion for out of time
filing of appellant brief and enumeration of errors requesting an extension of time in
which to file a brief and enumeration of errors until October 20, 2014, 20 days from
the date of an order granting an extension, or some other date of the Court’s choosing.
As grounds for the motion, Appellant’s counsel, who works in the Griffin Judicial
Circuit Public Defender’s Office, explains that he was on a vacation leave from
August 8, 2014 through August 25, 2014, became ill, returned home early to receive
medical care, was hospitalized between August 29, 2014 and September 1, 2014, and
returned to work for limited hours on September 9, 2014. Counsel asserts that he first
learned the case had been docketed at that time.
While providing that Appellant may for good cause move to extend the time
for filing appellant’s brief and enumeration of errors, Court of Appeals Rule 23 (a)
states that: “Appellant’s motion for extension of time to file brief and enumeration of
errors must be filed prior to the date the documents are due or the Court may dismiss
the appeal.” Appellant does not explain why he did not arrange for someone in his
office to monitor this case while he was on vacation leave and to file a brief or timely
motion for extension if necessary. Appellant’s untimely motion for out of time filing
of appellant brief and enumeration of error is DENIED, and the appeal in the
captioned case is DISMISSED. Court of Appeals Rules 13 and 23 (a). If Appellant
has decided not to appeal, no further action is required. However, if Appellant wishes
to proceed with the appeal, he may have the right to an OUT-OF-TIME APPEAL
provided he exercises that right by moving for an out-of-time appeal in the trial court.
If the motion for an out-of-time appeal is granted and Appellant requests another
attorney but cannot pay, the trial court is to appoint another attorney to proceed with
the appeal. If the trial court denies the motion for an out-of-time appeal, Appellant
may appeal that denial to this Court within 30 days of the trial court’s decision. Reese
v. State, 216 Ga. App. 773 (456 SE2d 271) (1995).
Court of Appeals of the State of Georgia
10/08/2014
Clerk’s Office, Atlanta,____________________
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.