Bruce L. Stephens v. State

• Court: Court of Appeals of Georgia
• Decided: April 23, 2013
• Docket: A13A1555
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,__________________ April 23, 2013

The Court of Appeals hereby passes the following order:

A13A1555. BRUCE L. STEPHENS v. THE STATE.

In 2004, Bruce L. Stephens pled guilty to burglary and possession of tools for the commission of a crime. Stephens filed a motion for new trial on November 15, 2012, which the trial court denied on January 16, 2013. This direct appeal followed, but we lack jurisdiction. Although generally a motion for new trial extends the deadline for filing a notice of appeal, an untimely motion for new trial is void and does not extend the time for filing an appeal. See Wicks v. State, 277 Ga. 121 (587 SE2d 21) (2003). To be timely, a motion for new trial must “be made within 30 days of the entry of the judgment on the verdict.” OCGA § 5-5-40 (a). Here, judgment was entered in 2004, but Stephens did not file a motion for new trial until eight years later. Thus, the motion for new trial was untimely and did not extend the time for filing the notice of appeal. Under these circumstances, the appeal is subject to dismissal. See Peters v. State, 237 Ga. App. 625 (516 SE2d 331) (1999). In its order denying the motion, the trial court improperly treated the motion as an extraordinary motion for new trial. “One who has entered a plea of guilty cannot move for a new trial, as there was no trial.” Wright v. State, 277 Ga. 810, 811 (596 SE2d 587) (2004). Even if we could construe Stephens’s motion as an extraordinary motion for new trial, however, the appeal would nonetheless be subject to dismissal. See OCGA § 5-5-41 (b); Balkcom v. State, 227 Ga. App. 327 (489 SE2d 129) (1997). An appeal from the denial of an extraordinary motion for new trial requires compliance with the discretionary appeal procedure. See OCGA § 5-6-35 (a) (7); Balkcom, supra. Accordingly, we lack jurisdiction to consider Stephens’s appeal, which is hereby DISMISSED. Court of Appeals of the State of Georgia 04/23/2013 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.