Derrick Francois v. State ( 2017 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 03, 2017
The Court of Appeals hereby passes the following order:
A18A0469. DERRICK FRANCOIS v. THE STATE.
Derrick Francois was convicted of aggravated battery and other crimes, and we
affirmed his convictions on appeal. Francois v. State, 309 Ga. App. 692 (711 SE2d
45) (2011). Francois later filed an extraordinary motion for new trial based on newly
discovered evidence. The trial court denied that motion by order entered on October
14, 2015. Francois filed an application for discretionary appeal in this Court, which
we denied. See Case No. A16D0148, decided December 1, 2015. Francois also filed
this direct appeal. We lack jurisdiction for three reasons.
First, an order denying an extraordinary motion for new trial must be appealed
by application for discretionary appeal. See OCGA § 5-6-35 (a) (7). We have no
jurisdiction to consider a direct appeal from such an order. Gable v. State, 290 Ga.
81, 82 (1) (720 SE2d 170) (2011); Balkcom v. State, 227 Ga. App. 327, 329 (489
SE2d 129) (1997).
Second, our previous denial of Francois’s discretionary application was a
decision on the merits. See Northwest Social & Civic Club v. Franklin, 276 Ga. 859,
860 (583 SE2d 858) (2003). Thus, the doctrine of res judicata precludes this direct
appeal from the same order. See id.Third, Francois’s notice of appeal was filed on November 25, 2015, 42 days
after entry of the order he wishes to appeal. A notice of appeal, however, must be
filed within 30 days of entry of the order to be appealed. 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. Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756)
(1995).
For all of these reasons, this appeal is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
11/03/2017
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.