Michael Clark v. State

• Court: Court of Appeals of Georgia
• Decided: August 1, 2023
• Docket: A24A0034
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ August 01, 2023

The Court of Appeals hereby passes the following order:

A24A0034; A24A0035. MICHAEL CLARK v. THE STATE.

In November 2014, in two separate cases, Michael Clark pled guilty to two counts of robbery and three counts of criminal intent to commit robbery. Clark subsequently filed numerous motions for out-of-time appeal. At a December 2018 hearing on one of the motions, the trial court orally granted Clark an out-of-time appeal. However, the record does not contain any written order granting an out-of- time appeal. Nonetheless, on March 18, 2019, Clark filed a single notice of appeal, seeking to appeal the November 2014 judgments of conviction. We lack jurisdiction. First, Clark’s notice of appeal is not timely to any trial court order. A notice of appeal must be filed within 30 days after entry of the order 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. See Davis v. State, 330 Ga. App. 711, 711 (769 SE2d 133) (2015). Because Clark’s notice of appeal was filed more than four years after his judgments of conviction were entered, it is untimely. Moreover, Clark may not appeal the trial court’s oral ruling. See Sharp v. State, 183 Ga. App. 641, 642 (1) (360 SE2d 50) (1987) (“an oral order is not final nor appealable until and unless it is reduced to writing, signed by the judge, and filed with the clerk”). And even if the record contained a written order granting Clark an out-of- time appeal, he would still not be entitled to an appeal. In Cook v. State, 313 Ga. 471, 506 (5) (870 SE2d 758) (2022), the Supreme Court of Georgia eliminated the judicially created out-of-time-appeal procedure, holding that a trial court is “without jurisdiction to decide [a] motion for out-of-time appeal” on the merits because “there was and is no legal authority for motions for out-of-time appeal in trial courts.” Cook also concluded that this holding would apply to “all cases that are currently on direct review or otherwise not yet final.” Id. Accordingly, these appeals are hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 08/01/2023 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.