Milton Lee Davis v. State

• Court: Court of Appeals of Georgia
• Decided: June 10, 2016
• Docket: A16A1790
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ June 09, 2016

The Court of Appeals hereby passes the following order:

A16A1790. MILTON LEE DAVIS v. THE STATE.

In 2010, a jury convicted Milton Lee Davis of criminal attempt and burglary. This Court affirmed his conviction in an unpublished opinion. See Case No. A12A0212 (decided May 22, 2012). Upon remittitur, Davis filed numerous motions to vacate his sentence based on the United States Supreme Court’s decision in Johnson v. United States, __ U. S. __ (135 SCt 2551, 192 LE2d 569) (2015) (imposition of increased sentence under a residual clause contained in the recidivist portion of the federal Armed Career Criminal Act violates due process because the residual clause is unconstitutionally vague). The trial court denied Davis’s motions in orders entered on August 7, 2015 and August 11, 2015. On August 20, 2015, the trial court also denied Davis’s motion for reconsideration. On September 17, 2015, Davis filed documents that the trial court construed as a notice of appeal from its rulings of August 7 and August 11, and Davis appealed to the Georgia Supreme Court. The Georgia Supreme Court determined that it did not have jurisdiction over Davis’s claims and transferred the case to this Court. We, however, also lack jurisdiction. To be timely, a notice of appeal must be filed within 30 days after entry of the appealable order. 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 Rowland v. State, 264 Ga. 872 (1) (452 SE2d 756) (1995). Because Davis did not file his notice of appeal until 41 days after entry of the trial court’s August 7 order and 37 days after entry of the trial court’s August 11 order, his appeal is untimely. Although he filed a motion for reconsideration, a trial court’s denial of such a motion is not subject to direct appeal, and the filing of such a motion does not extend the time for appealing the underlying judgment. See Bell v. Cohran, 244 Ga. App. 510, 511 (536 SE2d 187) (2000). For these reasons, we lack jurisdiction over this appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia 06/09/2016 Clerk’s Office, Atlanta,____________________ 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.