Francisco Yovanny Argueta v. State

• Court: Court of Appeals of Georgia
• Decided: December 20, 2021
• Docket: A22A0586
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ December 20, 2021

The Court of Appeals hereby passes the following order:

A22A0586. FRANCISCO YOVANNY ARGUETA v. THE STATE.

In January 2019, Francisco Yovanny Argueta pled guilty to two counts of aggravated child molestation and four counts of child molestation. In June 2021, he filed a motion to withdraw his guilty plea.1 On July 1, 2021, the trial court entered an order denying the motion.2 On September 13, 2021, Johnson filed a notice of appeal stating that he had not received the order on his motion until August 16, 2021. We, however, lack jurisdiction. A notice of appeal must be filed within 30 days of entry of the judgment or trial court 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. Redford v. State, 357 Ga. App. 247, 250 (850 SE2d 447) (2020). Argueta’s notice of appeal was filed 74 days after entry of the trial court’s order denying his motion. Thus, this appeal is untimely and is therefore DISMISSED for lack of jurisdiction. See id.; Hill-Blount v. State, 336 Ga. App. 633, 634-635 (2) (785 SE2d 309) (2016). To the extent that the trial court may have frustrated Argueta’s ability to seek appellate review by failing to notify him of its order in a timely manner, Argueta’s remedy is to petition the trial court to vacate and re-enter the order under OCGA § 9- 11-60 (g). See Cambron v. Canal Ins. Co., 246 Ga. 147, 148-149 (1) (269 SE2d 426)

1 Argueta also filed a motion for an out-of-time appeal, but the record does not show that the trial court ruled on the motion. 2 The order is entitled “Order Denying Defendant’s Pro Se Motion to Withdraw Guilty Plea,” but the court actually dismissed the motion. (1980), disapproved in part by Wright v. Young, 297 Ga. 683, 684 n.3 (777 SE2d 475) (2015). If the order is vacated and re-entered, Argueta would be required to file a notice of appeal within 30 days from the date of re-entry. Id.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 12/20/2021 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.