Lagarrian O'Brian Clark v. State

• Court: Court of Appeals of Georgia
• Decided: February 22, 2017
• Docket: A17A0992
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ February 16, 2017

The Court of Appeals hereby passes the following order:

A17A0992. LAGARRIAN O’BRIAN CLARK v. THE STATE.

Lagarrian O’Brian Clark pled guilty to burglary, aggravated assault, and criminal damage to property in 2006. In 2009, he filed a pro se motion for an out-of- time appeal, which the trial court denied on March 20, 2009. Clark did not appeal that order. Clark subsequently filed another pro se motion for out-of-time appeal. On December 9, 2016, the trial court denied Clark’s second motion, finding that his motion raised the same issues regarding ineffective assistance of counsel and sufficiency of his guilty plea as his first motion for out-of-time appeal. Clark filed this direct appeal from that ruling. We lack jurisdiction. Although a criminal defendant may directly appeal from a trial court order denying his request for an out-of-time appeal, a notice of appeal must be filed within 30 days after entry of an appealable order. See OCGA § 5-6-38 (a). Thus, if Clark had filed a timely appeal from the March 20, 2009 order denying his initial motion for an out-of-time appeal, we would have accepted the direct appeal. However, as the trial court indicated, Clark’s subsequent motion for an out-of-time appeal is merely a renewal of his original motion. In essence, it is a motion for reconsideration of the original order. And the denial of a motion for reconsideration is not directly appealable and does not extend the time for appealing the underlying judgment. Bell v. Cohran, 244 Ga. App. 510, 511 (536 SE2d 187) (2000). Clark’s December 30, 2016 notice of appeal, therefore, is untimely as to the March 20, 2009 order denying his motion for an out-of-time appeal and invalid as to the order denying his “second” motion for out-of-time appeal requesting the court to reconsider his first motion. Accordingly, we lack jurisdiction to consider this appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 02/16/2017 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.