Jerry John Mitchell v. State ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 12, 2018
The Court of Appeals hereby passes the following order:
A19A0456. JERRY JOHN MITCHELL v. THE STATE.
A jury found Jerry Mitchell guilty of trafficking in marijuana, and the trial
court entered his judgment of conviction on December 13, 2016. Mitchell
represented himself during his trial. On August 25, 2017, Mitchell, still proceeding
pro se, filed an “Out-of-time Motion for New Trial,” which the trial court denied as
untimely on June 21, 2018. Mitchell filed a pro se notice of appeal on July 16, 2018.
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). Although the filing of a motion
for a new trial generally extends the deadline for filing a notice of appeal, see OCGA
§ 5-6-38 (a), an untimely motion for a new trial is void and does not extend the time
for filing an appeal, Wicks v. State, 277 Ga. 121, 121-122 (587 SE2d 21) (2003). To
be timely, a motion for a new trial must be made “within 30 days of the entry of the
judgment on the verdict.” OCGA § 5-5-40 (a).1
Mitchell’s motion for a new trial, which he filed 255 days after entry of his
judgment of conviction, was untimely and did not extend the time for filing a notice
1
A defendant may obtain permission from the trial court to file an out-of-time
motion for a new trial, the denial of which may be appealed directly. See Washington
v. State, 276 Ga. 655, 656 (1) (581 SE2d 518) (2003). Here, however, the record does
not show that Mitchell sought permission to file an out-of-time motion.
of appeal. See Wicks, 277 Ga. at 121-122. Under these circumstances, Mitchell’s
instant appeal is untimely and is therefore DISMISSED for lack of jurisdiction. See
Peters v. State, 237 Ga. App. 625, 625 (516 SE2d 331) (1999).
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
10/12/2018
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.