Anton J. Smith v. State

Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 12, 2019
The Court of Appeals hereby passes the following order:
A20A0638. ANTON J. SMITH v. THE STATE.
A jury convicted Anton J. Smith of rape, kidnapping, aggravated sodomy,
armed robbery, and burglary. This Court reversed his conviction for armed robbery,
but otherwise affirmed. See Smith v. State, 244 Ga. App. 165 (534 SE2d 903)
(2000). Thereafter, Smith filed a motion to dismiss and, subsequently, a “motion for
notice of ruling” regarding same. In an order entered on August 16, 2018, the trial
court denied Smith’s motion to dismiss and dismissed as moot his motion for notice
of a ruling. On September 20, 2018, Smith filed a direct appeal from the court’s
August 16 order.1 We, however, lack jurisdiction.
First, a notice of appeal must be filed within 30 days of the entry of the order
sought 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). Here, Smith filed his notice of
appeal 35 days after entry of the trial court’s order, rendering his appeal untimely.
Moreover, Smith filed an application for discretionary appeal seeking review
of the same trial court order. We dismissed Smith’s discretionary application on
October 22, 2018. See Case No. A19D0121. As a result, the doctrine of res judicata
bars Smith from seeking further appellate review of the trial court’s order. See Norris
v. Norris, 281 Ga. 566, 567-568 (2) (642 SE2d 34) (2007); see also Echols v. State,
243 Ga. App. 775, 776 (534 SE2d 464) (2000) (“It is axiomatic that the same issue
1
Smith later appealed from the trial court’s denial of his motion to set aside the
verdict, which presents a similar issue. See Case No. A20A0639.
cannot be relitigated ad infinitum. The same is true of appeals of the same issue on
the same grounds.”).
Finally, in his motion to dismiss, Smith argued that the trial court lacked
subject matter jurisdiction because his indictment was not returned in open court. But
such a claim is an attack on his convictions. See Thompson v. State, 304 Ga. 146,
149 (3) (816 SE2d 646) (2018) (“Appellant claims that his convictions are void
because the record does not show that his indictment was returned in open court.”);
Jones v. State, 290 Ga. App. 490, 494 (2) (659 SE2d 875) (2008) (holding that
attacks on the indictment are essentially attempts to have the judgment of conviction
vacated). “[A] petition to vacate or modify a judgment of conviction is not an
appropriate remedy in a criminal case[,]” and any appeal from an order denying or
dismissing such a motion must be dismissed. Harper v. State, 286 Ga. 216, 218 (1)-
(2) (686 SE2d 786) (2009).
For these reasons, this appeal is hereby DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
12/12/2019
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.