Roy Gates v. State

• Court: Court of Appeals of Georgia
• Decided: July 27, 2022
• Docket: A22A1702
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ July 27, 2022

The Court of Appeals hereby passes the following order:

A22A1702. ROY GATES v. THE STATE.

In 2019, Roy Gates pled guilty to three counts of burglary. In 2020, Gates filed a “Motion to Vacate Illegally Imposed Sentence[.]” The trial court denied the motion, finding that Gates failed to show that the sentence was void (i.e., illegal). Gates appealed the judgment. This Court affirmed the judgment, holding that Gates failed to establish that the sentence was void. Case No. A21A0177 (decided May 13, 2021). In January 2022, Gates filed a “Motion to Modify/Reduce Sentence and to Correct Clerical Error,” contending that the sentence was void and illegal. On May 2, 2022, the trial court denied the motion, and on June 3, 2022, Gates filed this appeal. We lack jurisdiction. First, the appeal is untimely. A notice of appeal must be filed within 30 days of entry of the 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 upon an appellate court.” Perlman v. Perlman, 318 Ga. App. 731, 739 (4) (734 SE2d 560) (2012) (punctuation omitted). Because Gates filed the notice of appeal 32 days after entry of the trial court’s order, we lack jurisdiction. See id. Second, we rejected Gates’s challenge to his sentence in Case No. A21A0177. He is bound by the judgment in that case. See Ross v. State, 310 Ga. App. 326, 327 (713 SE2d 438) (2011) (“[A]ny issue that was raised and resolved in an earlier appeal is the law of the case and is binding on this Court[.]”) (punctuation omitted); see also Jackson v. State, 273 Ga. 320, 320 (540 SE2d 612) (2001) (a defendant “is not entitled to another bite at the apple by way of a second appeal”); Jordan v. State, 253 Ga. App. 510, 511-512 (2) (559 SE2d 528) (2002) (“It is axiomatic that the same issue cannot be relitigated ad infinitum. The same is true of appeals of the same issue on the same grounds. Our determination in the earlier appeal is res judicata; the instant appeal is therefore barred, and we are without jurisdiction to review this same matter for a second time.”) (punctuation omitted). Consequently, this appeal is hereby DISMISSED. Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 07/27/2022 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.