Demickey Rogers v. State ( 2022 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 11, 2022
The Court of Appeals hereby passes the following order:
A23A0074. DEMICKEY ROGERS v. THE STATE
Following a jury trial, Demickey Rogers was found guilty of armed robbery,
manufacture of marijuana, and two counts of possession of a firearm during the
commission of a felony. Sentence was entered on December 12, 2019. Although
Rogers was represented by retained counsel at trial, he filed a pro se motion for new
trial. Thereafter, new counsel entered an appearance and filed an amended motion for
new trial. On June 24, 2022, the trial court denied the motion for new trial, and
Rogers’ attorney filed a notice of appeal. We, however, lack jurisdiction.
“[T]he proper and timely filing of the notice of appeal is an absolute
requirement to confer jurisdiction upon the appellate court.” Davis v. State, 330 Ga.
App. 711, 711 (769 SE2d 133) (2015) (citation, punctuation, and emphasis omitted).
Generally, a notice of appeal must be filed “within 30 days after entry of the
appealable decision or judgment complained of.” OCGA § 5-6-38 (a). However, a
timely filed motion for new trial may extend the time in which to seek appellate
review. See id. (“[W]hen a motion for new trial . . . has been filed, the notice shall be
filed within 30 days after the entry of the order granting, overruling, or otherwise
finally disposing of the motion[.]” To be timely, a motion for new trial must be filed
within 30 days of a judgment of conviction. OCGA § 5-5-40 (a). “[A] late-filed
motion for new trial cannot toll the time for filing a notice of appeal under OCGA §
5-6-38 (a).” Pounds v. State, 309 Ga. 376, 378 n.4 (846 SE2d 48) (2020); see also
Blackmon v. State, 306 Ga. 90, 91 n.1 (829 SE2d 75) (2019) (“[T]he time period for
filing a notice of appeal is not tolled by an untimely motion for new trial.”).
Here, although Rogers filed a timely pro se motion for new trial, that motion
was a nullity. “A criminal defendant in Georgia does not have the right to represent
himself and also be represented by an attorney, and pro se filings by represented
parties are therefore unauthorized and without effect.” Tolbert v. Toole, 296 Ga. 357,
363 (3) (767 SE2d 24) (2014) (punctuation omitted). Accordingly, Rogers was not
authorized to file a motion for new trial. See Pounds, 309 Ga. at 377 (2) (b) (“if a
defendant files a motion for new trial on his own behalf when he is still represented
by counsel, that motion is a legal nullity”). Rather, Rogers was required to act through
trial counsel whose duties “extend[ed] for at least the 30 days after the entry of
judgment when a notice of appeal may be filed.” White v. State, 302 Ga. 315, 318 (2)
(806 SE2d 489) (2017). Nothing in the record indicates that trial counsel withdrew
or was relieved of representation during this period. Accordingly, Rogers’ pro se
motion for new trial was a legal nullity which did not operate to extend the time for
filing a notice of appeal. See Pounds, 309 Ga. at 377-378 (2) (b).
Although Rogers’ appellate counsel filed an amended motion for new trial in
December 2020, “a pleading purporting to amend a prior filing that was a nullity . .
. does not relate back in time to the date of the non-filing[.]” White, 302 Ga. at 320(3); see also Pounds, 309 Ga. at 384 (4) (“a legally void motion cannot be resuscitated
by the appearance of counsel alone, and even an attorney purporting to amend a prior
filing that was a nullity cannot change the void nature of the legally inoperative
motion”) (punctuation omitted). Rather, the amended motion for new trial must be
treated as “the first and only legally operative motion for new trial filed on [Rogers’]
behalf.” Id. Here, the amended motion for new trial was filed over a year after entry
of sentence and was thus not timely. See OCGA § 5-5-40 (a). As such, it did not
extend the time for Rogers to file a notice of appeal. See Pounds, 309 Ga. at 384 (4).
Accordingly, Rogers’ notice of appeal is untimely, and this case is hereby
DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/11/2022
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.