309 Ga. 376 FINAL COPY
S20A0470. POUNDS v. THE STATE.
WARREN, Justice.
In 2017, William C. Pounds III was convicted of malice murder.
Pounds filed a motion for new trial, but did so after the statutory
filing deadline for motions for new trial had expired; the motion was
therefore untimely. However, the trial court did not dismiss
Pounds’s motion for new trial as untimely; instead, it denied the
motion on the merits. Then, three weeks later, and almost two years
after Pounds was convicted, the trial court granted Pounds an out-
of-time appeal. But because the trial court’s merits ruling on
Pounds’s late-filed and untimely motion for new trial was invalid,
Pounds never obtained a valid ruling on the motion for new trial that
preceded his request for an out-of-time-appeal and that ripened
upon the grant of the out-of-time appeal. As a result, when Pounds
filed a notice of appeal to this Court, his prior motion for new trial
was still pending, and the trial court retained jurisdiction to rule on it. For these reasons, as explained more fully below, Pounds’s appeal
must be dismissed.
1. Procedural History.
On October 25, 2017, the trial court entered Pounds’s judgment
of conviction and sentence for malice murder. Acting pro se, Pounds
filed a purported motion for new trial on October 27, 2017.1 Later,
current appellate counsel — a different attorney than had
represented Pounds at trial — began representing Pounds. More
than one-and-a-half years after the judgment, appellate counsel
filed on May 30, 2019, a motion styled as an “amended motion for
new trial” on Pounds’s behalf.2 The trial court purported to deny the
1 As further discussed below, the pro se motion for new trial Pounds filed
on October 27, 2017, was timely under OCGA § 5-5-40 (a), but because the record contains no order or other ruling allowing trial counsel to withdraw before Pounds submitted his motion for new trial, Pounds was still represented by counsel, and the motion was therefore a legal nullity. See Ricks v. State, 307 Ga. 168, 169 (835 SE2d 179) (2019) (citing Dos Santos v. State, 307 Ga. 151, 154 (834 SE2d 733) (2019)); Howard v. State, 307 Ga. 12, 12 n.1 (834 SE2d 11) (2019).
2 As explained more below in Division 4, the “amended motion for new
trial” was not actually an amended motion because a void legal filing (such as the pro se motion Pounds filed while still represented by counsel here) cannot be amended. Because the substance of the motion Pounds’s counsel filed amended motion on the merits on August 20, 2019, and then granted
an out-of-time appeal on September 11, 2019. The trial court took
no further action related to the motion for new trial, and Pounds
filed his notice of appeal on September 20, 2019.
2. Legal Background.
This Court has a duty “to inquire into its jurisdiction to
entertain each appeal and review the alleged errors of the trial
court.” Duke v. State, 306 Ga. 171, 172 (829 SE2d 348) (2019)
(citation and punctuation omitted). In this case, that duty requires
us to consider the interplay between a pro se motion for new trial
filed while a defendant is still represented by trial counsel, a late-
filed (and thus untimely) motion for new trial, a trial court order
ruling on the merits of an untimely motion for new trial, and a grant
of an out-of-time appeal, and, in turn, the effect those motions and
rulings have on this Court’s jurisdiction to hear Pounds’s appeal.
indicates that it was a motion for new trial, we treat it as such. See Bell v. Figueredo, 259 Ga. 321, 322 (381 SE2d 29) (1989) (“It is well established that there is no magic in nomenclature.”) (citation and punctuation omitted). Whether that motion for new trial was timely filed is, however, a separate question. (a) Statutory Deadline for Filing a Motion for New Trial.
“All motions for new trial, except in extraordinary cases, shall
be made within 30 days of the entry of the judgment on the verdict
or entry of the judgment where the case was tried without a jury.”
OCGA § 5-5-40 (a). Extraordinary motions for new trial are
permitted under OCGA §§ 5-5-40 (a) and 5-5-41, but are only “an
extraordinary remedy that provides a means for a defendant to seek
a new trial outside of the ordinary 30-day period when extraordinary
circumstances exist.” Mitchum v. State, 306 Ga. 878, 880 (834 SE2d
65) (2019). And, generally speaking, an untimely motion for new
trial cannot be construed “as an extraordinary motion for new trial
[if] it [is] unaccompanied by any attempt to show ‘some good reason
. . . why the motion was not made during (the 30-day) period’
following entry of the judgment and sentence.” Porter v. State, 271
Ga. 498, 499 (521 SE2d 566) (1999) (quoting OCGA § 5-5-41 (a)).
(b) Relevant Precedent Regarding Motions for New Trial.
Our case law establishes a number of additional rules that
govern motions for new trial. We review several of them below. First, regardless of whether the 30-day period after “the entry
of the judgment on the verdict or entry of the judgment where the
case was tried without a jury,” OCGA § 5-5-40 (a), has expired, if a
defendant files a motion for new trial on his own behalf when he is
still represented by counsel, that motion is a legal nullity. Howard
v. State, 307 Ga. 12, 12 n.1 (834 SE2d 11) (2019) (defendant’s “initial
pro se motion [for new trial] was a nullity . . . because he was still
represented by counsel at the time of filing”); Cotton v. State, 279
Ga. 358, 361 (613 SE2d 628) (2005) (explaining that a pro se motion
for new trial while represented was “unauthorized and without
effect”). See also Dos Santos v. State, 307 Ga. 151, 154-155 (834
SE2d 733) (2019) (explaining that “pro se filings by represented
parties” are “legal nullities” and therefore “unauthorized and
without effect,” specifically in the context of motions to withdraw a
guilty plea, but also with respect to post-trial motions like motions
for new trial). Moreover, that a new attorney later begins
representing a defendant and files a motion for new trial that
purports to amend a pro se motion the defendant filed while still represented by previous counsel cannot “breathe life into” that
earlier motion, because the earlier motion is an “inoperative
pleading” and is thus a legal nullity. Id. at 155 n.4.
Second, we recently explained that a post-conviction motion
“filed by counsel, or pro se by a defendant no longer represented by
counsel,” after expiration of the time allowed for filing of the motion,
“is merely untimely, not a legal nullity.” Id. at 156 n.5. Notably,
however, several of our previous decisions characterized this type of
late-filed motion for new trial not as untimely, but as “void.”3 See
Sanders v. State, 289 Ga. 655, 659 (715 SE2d 124) (2011); Clemons
v. State, 288 Ga. 445, 446 (704 SE2d 762) (2011); Wicks v. State, 277
Ga. 121, 121 (587 SE2d 21) (2003); Gulledge v. State, 276 Ga. 740,
741 (583 SE2d 862) (2003); Fairclough v. State, 276 Ga. 602, 603
3 By contrast, in Southall v. State, 300 Ga. 462 (796 SE2d 261) (2017),
we held that a motion for new trial that is filed before entry of the judgment about which it complains — i.e., a motion that is untimely because it is early — is not “void” but is simply “premature” and “dormant in its effect,” and that, so long as it sufficiently identifies the judgment involved, the motion “becomes fully effective upon entry of that judgment, enabling the trial court — and ultimately the appellate court pursuant to a properly filed notice of appeal — to review all of the issues raised in the motion on their merits.” Id. at 466-467. (581 SE2d 3) (2003); Porter, 271 Ga. at 498; Johnson v. State, 227
Ga. 219, 219 (180 SE2d 94) (1971). The characterization is at best a
misnomer, because motions for new trial that are filed late and are
thus untimely are not void in the sense that they are legal nullities
without any effect.4
Indeed, under our case law, a late-filed and untimely motion
for new trial generally can become effective, if and when an out-of-
4 Although we used the term “void” to describe late-filed motions for new
trial in the cases cited above, it appears that we used “void” in many of those cases to describe one particular way that late-filed motions for new trial do not have effect: a late-filed motion for new trial cannot toll the time for filing a notice of appeal under OCGA § 5-6-38 (a). See, e.g., Blackmon v. State, 306 Ga. 90, 91 n.1 (829 SE2d 75) (2019); Fulton v. State, 277 Ga. 126, 126 (587 SE2d 20) (2003); Wicks, 277 Ga. at 121; Gulledge, 276 Ga. at 741; Porter, 271 Ga. at 498-499 (“To allow untimely filed motions, and thereby toll or delay the time for filing a notice of appeal, would violate the provisions of OCGA § 5-6-39 (b), prohibiting extensions of time for filing such motions, as well as ignore the further mandate of OCGA § 5-6-39 (d), that requires within 30 days either the filing of a notice of appeal or the obtaining of an extension of time therefor.”) (citation and punctuation omitted); Johnson, 227 Ga. at 219. Cf. Washington v. State, 276 Ga. 655, 656 (581 SE2d 518) (2003) (holding that a direct appeal is available if the trial court grants permission to file an out-of-time motion for new trial before denying the previously untimely motion on its merits). To the extent that our use of the term “void” in Wicks, Gulledge, Porter, or Johnson can be construed to mean that a late-filed motion for new trial is a legal nullity without any legal effect, they are hereby disapproved. We note that Fairclough, 276 Ga. at 603, also cites Porter and in so doing references a late- filed motion for new trial as “void.” Although that characterization is inaccurate and should be avoided in future cases, the use of that misnomer did not affect the holding in that case. time appeal is granted. We have explained this theory as follows:
“Once [an] out-of-time appeal [is] granted, it reset[s] the time for [the
defendant’s] post-trial proceedings[,] and his motion for new trial,
which [was] untimely, ripen[s].” Lay v. State, 305 Ga. 715, 715 n.1
(827 SE2d 671) (2019); see also Fairclough, 276 Ga. at 603 (because
the grant of an out-of-time appeal permits a defendant “to start the
post-conviction process anew” and “to pursue the post[-]conviction
remedy of a new trial,” and because it is the “functional equivalent
of the entry of a judgment,” the grant of an out-of-time appeal
renders a motion for new trial filed more than 30 days after entry of
the judgment “one which was only prematurely filed[,] and this
prematurity will not serve to deprive the appellate court of
jurisdiction to review the merits of the appeal”) (citations and
punctuation omitted; emphasis in original).5 As a result, a late-filed
5 As we did in Fairclough, we have continued to recognize that because
the grant of an out-of-time appeal is “‘the functional equivalent of the entry of a judgment,’” Moore v. State, 303 Ga. 743, 745 (814 SE2d 676) (2018) (quoting Fairclough, 276 Ga. at 603), it “permits a defendant to start the post-conviction process anew” and “constitutes permission to pursue appropriate post- conviction remedies, including a motion for new trial,” Robinson v. State, 306 motion for new trial is untimely when it is filed but is not void insofar
as a trial court’s later actions could breathe new life into it.
Third, absent the grant of an out-of-time appeal, the
appropriate disposition for a late-filed motion for new trial that
cannot be construed as an extraordinary motion for new trial is for
the trial court to dismiss the motion as untimely. See Ricks v. State,
307 Ga. 168, 170 (835 SE2d 179) (2019) (whether a late-filed post-
conviction motion is a legal nullity or “merely untimely,” the trial
court should dismiss the motion, rather than make any ruling on the
merits). That is because the trial court does not have jurisdiction to
rule on the merits of a motion for new trial filed after the 30 days
permitted by OCGA § 5-5-40 (a). See Ricks, 307 Ga. at 170 (when a
post-conviction motion was filed after expiration of the time allowed,
the trial court “no longer had jurisdiction” to rule on the merits);
Ga. 614, 617 n.4 (832 SE2d 411) (2019) (citations and punctuation omitted). Indeed, the out-of-time appeal process remains “an exception to the general rule that a trial court’s jurisdiction ends following a final conviction and the end of the term of court.” Collier v. State, 307 Ga. 363, 376 (834 SE2d 769) (2019). Some Justices have questioned whether this process should be maintained. See id. at 379-382 (Peterson, J., concurring, joined by Blackwell, Boggs, and Bethel, JJ.). Brooks v. State, 301 Ga. 748, 751-752 (804 SE2d 1) (2017) (holding
that the trial court “lacked jurisdiction” to consider a late post-
conviction motion, and stating that “when a trial court is presented
with a motion it lacks jurisdiction to decide, the trial court should
dismiss the motion rather than deny it”). See also Gable v. State,
290 Ga. 81, 85 (720 SE2d 170) (2011) (although in certain cases we
“have excused a party’s failure to comply with court rules and other
non-jurisdictional procedural requirements, . . . courts have ‘no
authority to create equitable exceptions to jurisdictional
requirements’ imposed by statute.”) (quoting Bowles v. Russell, 551
U.S. 205, 214 (127 SCt 2360, 168 LE2d 96) (2007)).6 Indeed, an order
disposing of a late-filed motion for new trial on the merits would
itself be invalid. See Brooks, 301 Ga. at 752 (an order plainly
denying on the merits an untimely post-conviction motion cannot
function as an authorized dismissal of the motion and is subject only
6 Bowles recognized “the distinction between claims-processing rules and
jurisdictional rules,” but “also recognized the jurisdictional significance of the fact that a time limitation is set forth in a statute,” as opposed to rules of court. 551 U.S. at 210. to vacatur). Cf. Duke, 306 Ga. at 172 (statutory provisions
“respecting the procedure to be followed in perfecting appeals to this
Court are jurisdictional, and unless this Court has jurisdiction of a
case, it is without power or authority to render a judgment upon
review”) (citation and punctuation omitted).
Importantly, however, whereas our case law permits a
prematurely filed motion for new trial to ripen upon the entry of
judgment, see Southall v. State, 300 Ga. 462, 466-467 (796 SE2d
261) (2017), and a late-filed motion for new trial can be brought back
to life upon a trial court’s grant of an out-of-time appeal, see, e.g.,
Fairclough, 276 Ga. at 603, no such authority exists to ripen or
breathe new life into an invalid trial court order ruling on the merits
of a late-filed motion for new trial. Cf. Clemons, 288 Ga. at 446
(upholding the denial of a motion for new trial not because the trial
court’s ruling on the merits was correct, but because the motion was
not filed within the 30 days permitted in OCGA § 5-5-40 (a)).
3. Clemons v. State.
Clemons v. State is an example of how our Court has grappled with the interplay between (and the legal consequences of) a late-
filed motion for new trial and a later grant of an out-of-time appeal.
It is especially relevant here because it is procedurally on all fours
with Pounds’s appeal. In Clemons, the appellant filed an untimely
motion for new trial raising a claim of ineffective assistance of trial
counsel, and the trial court denied the late-filed motion before later
granting an out-of-time appeal. When the appellant appealed, we
held that the late-filed motion for new trial was “void” and thus
“bar[red] review” on appeal of the ineffective assistance of counsel
claim the appellant alleged in that motion for new trial. We
therefore did not review the merits of the error alleged in the
untimely motion for new trial. Clemons, 288 Ga. at 446-447.
Clemons, however, is in tension with much of our case law on
motions for new trial. There, although we recognized that the
appellant’s late-filed motion for new trial was untimely, we also
characterized the late-filed motion as “void.” Id. at 446. Moreover,
we acknowledged that the trial court ruled on a late-filed motion for
new trial, yet we still “affirmed” the trial court’s denial on the merits of the motion for new trial as to the error alleged in that motion,
effectively affirming the trial court’s judgment of conviction.7 We
explained that because “the motion was void, there was no error in
[the trial court] denying it”8 and that “[o]nce that void motion for
new trial was denied, the subsequent grant of an out-of-time appeal
could no longer render the motion merely premature.” Id. at 446
(citing and distinguishing Fairclough, 276 Ga. at 603, as a case
“where [the] grant of out-of-time appeal rendered a prior void motion
for new trial one which was premature, and the motion was only
thereafter denied”). See also Sanders, 289 Ga. at 659 (following
Clemons); Ingram v. State, 297 Ga. 854, 857 (778 SE2d 781) (2015)
(following Sanders).
Yet Clemons did not recognize that a late-filed motion for new
trial is merely untimely and is not void in the sense of a legal nullity;
7 The case Clemons relied on to “affirm” was Dae v. Patterson, 295 Ga.
App. 818, 819 (1) (673 SE2d 306) (2009), which was later overruled in Southall, 300 Ga. at 468.
8 The case Clemons relied on for this proposition was Harrison v. Harrison, 229 Ga. 692, 692 (2) (194 SE2d 87) (1972), which was also overruled in Southall, 300 Ga. at 468. that the timeliness requirement for a motion for new trial under
OCGA § 5-5-40 (a) is jurisdictional; that dismissal of an untimely
motion is the proper disposition for a late-filed motion for new trial;
and that an order denying a late-filed motion for new trial that is
plainly on the merits is itself an invalid order.9
But because a trial court order denying a late-filed and
untimely motion for new trial on the merits is, and remains, invalid
when an out-of-time appeal is granted, the motion for new trial itself
— which becomes ripe, though it was initially late-filed — remains
pending because no court has issued a valid legal judgment resolving
9 Our reasoning in Clemons presents another analytical problem. Clemons was correct to the extent it distinguished Fairclough and recognized that the timing and sequence of an out-of-time appeal matters: specifically, it makes a difference whether a late-filed and untimely motion for new trial is denied on the merits and then an out-of-time appeal is granted, as opposed to an out-of-time appeal being granted and then the late-filed and untimely motion for new trial being denied on the merits. In the latter instance, the motion ripens upon the grant of the out-of-time appeal, its denial on the merits is valid, and a direct appeal may be filed within 30 days after denial of the motion. See Fairclough, 276 Ga. at 603. But Clemons did not recognize that for the former instance — i.e., when a late-filed and untimely motion for new trial is denied on the merits and then an out-of-time appeal is granted — the order denying the motion for new trial is invalid, but the untimely motion for new trial still ripens because the trial court’s order on the motion had no legal effect, and that order cannot be “affirmed” on appeal or otherwise spring back to life so as to decide the newly ripened motion for new trial. it. And because the motion for new trial is pending, any notice of
appeal to an appellate court “has not yet ripened, and the trial court
retains jurisdiction to dispose of the motion for new trial.” State v.
Hood, 295 Ga. 664, 664 (763 SE2d 487) (2014). As a result, so long
as a “case properly remains within the jurisdiction of the trial court,”
and absent an applicable exception such as an interlocutory appeal
as provided in OCGA § 5-6-34 (b), any appeal must be dismissed.
Hood, 295 Ga. at 665.
Given the consequential shortcomings in Clemons, and its
analytical dissonance with our other precedents in this area, we
hereby overrule Clemons v. State, 288 Ga. 445 (704 SE2d 762)
(2011). Stare decisis considerations do not require a different
conclusion. Under that doctrine, “courts generally stand by their
prior decisions, because it promotes the evenhanded, predictable,
and consistent development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and perceived
integrity of the judicial process.” State v. Lane, 308 Ga. 10, 17 (838
SE2d 808) (2020) (punctuation omitted) (quoting Olevik v. State, 302 Ga. 228, 244 (806 SE2d 505) (2017)). But stare decisis “is not an
inexorable command.” Lane, 308 Ga. at 17 (citation and
punctuation omitted). “‘When we consider whether an earlier
decision ought to be reexamined, we consider a number of factors,
including the age of the precedent, the reliance interests involved,
the workability of the prior decision, and most importantly, the
soundness of its reasoning.’” Southall, 300 Ga. at 467 (citation
omitted).
As for the most important factor, we cannot say that the
reasoning in Clemons is sound. As explained above, the reasoning
we relied on to affirm on the merits the trial court’s denial of the
late-filed motion for new trial in Clemons was erroneous in several
respects; we should have instead dismissed the appeal so that the
trial court properly could exercise the jurisdiction it retained to
consider the merits of the motion for new trial, which had ripened
upon its grant of an out-of-time appeal.10 Accordingly, the reasoning
10 We perpetuated the same error in the two cases that follow Clemons
in this regard. To that end, our review of the archived records in Clemons, of Clemons and its progeny is unsound and is inconsistent with
applicable legal principles articulated in our other case law in this
area.
Second, the issues involved are ones “of appellate procedure,
not contract, property, or other substantive rights in which anyone
has a significant reliance interest.” Southall, 300 Ga. at 467
(citation and punctuation omitted). To that end, overturning
Clemons course-corrects an important aspect of appellate procedure
by properly treating a trial court order disposing of a late-filed
motion for new trial on the merits as invalid, allowing the motion
itself to ripen upon the grant of an out-of-time appeal, and then
ensuring that the trial court properly has ruled upon that motion
before any appeal is filed. This correction, which aligns with the
weight of our other precedent in this area, helps prevent the loss of
a defendant’s valuable rights to post-trial review, and the State will
Sanders, and Ingram confirms that in each case, the trial court’s order denying the defendant’s late-filed motion for new trial was plainly a denial on the merits. We nonetheless affirmed the denial of the motions for new trial in those cases. not be prejudiced or misled as a result because it will still be
permitted to oppose a defendant’s late-filed motion for new trial if
the trial court grants an out-of-time appeal. See id. at 465-466, 467
(treating a premature motion for new trial as effectively filed upon
entry of the trial court’s judgment does not prejudice the prevailing
party).
Third, we cannot say that Clemons is workable, because—in
addition to being inconsistent with other precedent in this area—
Clemons’s approval of appellate courts affirming invalid trial court
orders sets up a “trap for unwary litigants, lawyers, and judges,”
City of Cumming v. Flowers, 300 Ga. 820, 833 (797 SE2d 846) (2017),
and can impede the rights of review for defendants who are entitled
to an out-of-time appeal.11
11 Indeed, if we were to follow Clemons going forward, our affirmance of
an invalid trial court order denying on the merits a late-filed motion for new trial would become the law of the case for a defendant regarding the issues raised in the motion for new trial. See Strozier v. State, 306 Ga. 169, 170 (829 SE2d 361) (2019) (Georgia’s law of the case rule applies to criminal cases and “provides that holdings of the Supreme Court in a case shall be binding in all subsequent proceedings in that case in the lower court.”); State v. Jackson, 295 Ga. 825, 827 (764 SE2d 395) (2014) (“Upon remittitur, the disposition of [the defendant’s] motion for new trial was final, and this Court’s order became the Finally, Clemons is “‘neither ancient nor entrenched’”; it is only
nine years old, and the erroneous portion of Clemons has been
followed only in Sanders and Ingram. See Southall, 300 Ga. at 468
(citation omitted). Accordingly, we overrule Clemons v. State, 288
Ga. 445, 446 (704 SE2d 762) (2011), Sanders v. State, 289 Ga. 655,
659 (715 SE2d 124) (2011), and Ingram v. State, 297 Ga. 854, 857
(778 SE2d 781) (2015).
4. Applying This Court’s Motion for New Trial Case Law to Pounds’s Appeal.
With Clemons no longer good law, and applying the legal
principles articulated above, we conclude that Pounds’s appeal must
be dismissed. First, Pounds’s pro se motion for new trial was a legal
nullity — a motion without any legal effect — because the record
contains no ruling allowing trial counsel to withdraw, nor even any
request for the withdrawal of trial counsel or any invocation of the
law of the case.”). Practically speaking, that means that if we affirmed an invalid trial court order denying (instead of dismissing) a late-filed motion for new trial without deciding whether the trial court had correctly decided the issues, a defendant would be bound by our ruling and could be precluded from asserting claims that would otherwise have been available for post-conviction review if and when the trial court granted an out-of-time appeal. right to self-representation, so Pounds was still represented at the
time of his pro se motion for new trial. See, e.g., Howard, 307 Ga.
at 12 n.1. Cf. Walker v. State, ___ Ga. ___, ___ (843 SE2d 561) (2020)
(“the trial court’s on-the-record finding that Appellant had freely,
intelligently, and knowingly elected to waive his right to counsel and
to represent himself was sufficient to make effective Appellant’s pro
se motion for new trial filed on the next day”).
Second, the “amended” motion for new trial later filed by
Pounds’s current appellate counsel was not an “amended” motion at
all. That is because a void legal filing (such as the motion for new
trial Pounds filed pro se while still represented by counsel) — which
is itself a legal nullity — cannot be amended. See Dos Santos, 307
Ga. at 155 n.4 (noting that even though defendant secured new
counsel after filing a pro se motion to withdraw her plea while still
represented by prior counsel, “new counsel who represented her at
the hearing on her motion . . . could not breathe life into her
inoperative pleading” because a legally void motion cannot be
resuscitated by appearance of counsel alone, and even an attorney “purporting to amend a prior filing that was a nullity” cannot change
the void nature of the legally inoperative motion) (citation and
punctuation omitted). See also, e.g., Roberts v. McCollum, 215 Ga.
174, 175 (109 SE2d 744) (1959) (“[A] void proceeding is not
amendable.”). Looking past the “amended” label to the substance of
the motion Pounds’s appellate counsel filed on Pounds’s behalf, we
conclude that it was a motion for new trial and in fact was the first
and only legally operative motion for new trial filed on Pounds’s
behalf. See Lay, 305 Ga. at 715 n.1 (noting that although “new
appellate counsel filed a document styled as an ‘amended’ motion for
new trial, … it was actually the first such motion in the case”);
Fulton v. State, 277 Ga. 126, 126 n.1 (587 SE2d 20) (2003)
(defendant’s “first motion for new trial [was] styled ‘amendment to
motion for new trial’”). That motion for new trial, however, was not
filed within 30 days of the judgment of conviction as required under
OCGA § 5-5-40 (a), and we cannot construe it as an extraordinary
motion for new trial because it was not accompanied by any attempt
to show a good reason why it was not filed within 30 days of the entry of judgment. See OCGA § 5-5-41 (a); Porter, 271 Ga. at 499.
The motion for new trial filed by appellate counsel was therefore
untimely, though it was not a legal nullity. See Dos Santos, 307 Ga.
at 156 n.5.
Third, the trial court was not authorized to take any action on
Pounds’s late-filed and untimely motion for new trial other than
dismissal. See Ricks, 307 Ga. at 170. The trial court nevertheless
entered an order that purported to deny on the merits Pounds’s
untimely motion. But because that order ignored the filing deadline
imposed on Pounds by OCGA § 5-5-40 (a), the trial court had no
jurisdiction to enter it, and the order was therefore invalid. See
Ricks, 307 Ga. at 170; Brooks, 301 Ga. at 751-752; Gable, 290 Ga. at
85.
Finally, about three weeks after the trial court erroneously
denied Pounds’s late-filed motion for new trial, it also granted
Pounds an out-of-time appeal. Although that grant of an out-of-time
appeal could not resuscitate the trial court’s invalid order on
Pounds’s late-filed motion for new trial, it could and did render Pounds’s initially untimely motion for new trial ripe for review. See
Lay, 305 Ga. at 715 n.1; Fairclough, 276 Ga. at 603. As a result,
that motion for new trial remains pending, the trial court has
jurisdiction to rule on the merits of the motion, the notice of appeal
that Pounds filed pursuant to the grant of out-of-time appeal has not
ripened, and the attempted appeal in this Court must be dismissed.
See Hood, 295 Ga. at 664-665.12
Appeal dismissed. All the Justices concur.
DECIDED JULY 1, 2020. Murder. Bibb Superior Court. Before Judge Simms. Nicholas E. White, for appellant. K. David Cooke, Jr., District Attorney, Jason M. Martin, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Eric C. Peters, Assistant Attorney General, for appellee.
12 If, after the appeal to this Court is dismissed, the trial court denies
Pounds’s motion for new trial, the judgment of conviction will stand, and Pounds’s previously filed notice of appeal to this Court will ripen. See Hood, 295 Ga. at 665.