Kevin Johnson v. State

• Court: Court of Appeals of Georgia
• Decided: August 26, 2021
• Docket: A22A0101
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ August 17, 2021

The Court of Appeals hereby passes the following order:

A22A0101. KEVIN JOHNSON v. THE STATE.

In October 2019, Kevin Johnson pled guilty to armed robbery and possession of a firearm or knife during the commission of a felony. In December 2020, he filed motions for an out-of-time appeal and to withdraw his guilty plea. On April 15, 2021, the trial court entered an order denying these motions. In May 2021, Johnson sent a letter to the clerk of the trial court stating that he had not received an order on his motions, but his attorney had sent him a letter implying that the motions had been denied or dismissed. Johnson stated that if his motions had been denied or dismissed, he wished to appeal. This letter was stamped “filed” by the trial court clerk on May 19, 2021. Johnson later filed an amended notice of appeal, and the record was transmitted to this Court. 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). Johnson’s May 19 letter, construed as a notice of appeal, was filed 34 days after entry of the trial court’s order denying his motions. 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 Johnson’s ability to seek appellate review by failing to notify him of its order in a timely manner, Johnson’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) (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, Johnson 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,____________________ 08/17/2021 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.