Derrick Carr v. State

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ February 05, 2019

The Court of Appeals hereby passes the following order:

A19A1307. DERRICK CARR v. THE STATE.

In 2015, Derrick Carr entered a negotiated plea to two counts of theft by receiving stolen property. He was sentenced to a total term of five years to be served on probation. After Carr violated the terms of his probation, the trial court revoked the balance of his probation in April 2018, and imposed a term of imprisonment. Carr then filed a motion to vacate a void judgment, arguing, among other things, that his convictions are void based upon an alleged conspiracy when the bailiff returned the indictment in open court. The trial court denied the motion on August 15, 2018, and Carr filed the instant notice of appeal on September 27, 2018. We, however, lack jurisdiction.

First, Carr’s appeal is untimely. A notice of appeal must be filed within 30 days after entry of an appealable order. 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, Carr filed his notice of appeal 43 days after entry of the trial court’s order.

Second, to the extent Carr challenges his convictions, the Supreme Court has made clear that a motion seeking to challenge an allegedly invalid or void judgment of conviction “is not one of the established procedures for challenging the validity of a judgment in a criminal case” and that an appeal from the denial of such a motion is subject to dismissal. Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150) (2010). Thus, Carr is not authorized to collaterally attack his conviction in this manner. See id.; Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786) (2009); Matherlee v. State, 303 Ga. App. 765, 766 (694 SE2d 665) (2010).

Based on the foregoing, Carr’s appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 02/05/2019

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.