Donnie Wayne Phelps v. State

• Court: Court of Appeals of Georgia
• Decided: November 27, 2024
• Docket: A25A0734
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ November 27, 2024

The Court of Appeals hereby passes the following order:

A25A0734. DONNIE WAYNE PHELPS v. THE STATE.

On August 22, 2024, Donnie Wayne Phelps entered a counseled guilty plea to computer pornography, obscene internet contact with a child, and criminal attempt to commit a felony. On October 31, 2024, Phelps, proceeding pro se, filed a motion for new trial. The trial court dismissed the motion for new trial as untimely on November 1, 2024, and Phelps appeals. 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). A timely filed motion for new trial extends the time in which to seek appellate review. However, an untimely motion for new trial does not toll the time for filing a notice of appeal under OCGA § 5-6-38 (a). Hill-Blount v. State, 336 Ga. App. 633, 634-635 (2) (785 SE2d 309) (2016); 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.”). To be timely, a motion for new trial must be filed within 30 days of a judgment of conviction. OCGA § 5-5-40 (a). Here, pretermitting whether a motion for new trial was the proper vehicle for challenging his negotiated guilty plea, Phelps’s motion for new trial was untimely filed 70 days after entry of the judgment of conviction and sentence. See id. As such, it did not extend the time for Phelps to file a notice of appeal. See Hill-Blount, 336 Ga. App. at 634-635 (2). Accordingly, Phelps’s 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,____________________ 11/27/2024 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.