Ruben Sostre Santos v. State

• Court: Court of Appeals of Georgia
• Decided: December 2, 2024
• Docket: A25A0737
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ December 02, 2024

The Court of Appeals hereby passes the following order:

A25A0737. RUBEN SOSTRE SANTOS v. THE STATE.

Following a jury trial, Ruben Santos was found guilty of burglary. The trial court entered a judgment of conviction on May 14, 2024. On June 14, 2024, Santos filed a motion for new trial, which the trial court denied. Santos then filed a notice of appeal on October 2, 2024. We, however, lack jurisdiction. “[T]he proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” Davis v. State, 330 Ga. App. 711, 711 (769 SE2d 133) (2015) (citation, punctuation, and emphasis omitted). Generally, a notice of appeal must be filed “within 30 days after entry of the appealable decision or judgment complained of.” OCGA § 5-6-38 (a). A timely filed motion for new trial may extend the time in which to seek appellate review. However, “a late-filed motion for new trial cannot toll the time for filing a notice of appeal under OCGA § 5-6-38 (a).” Pounds v. State, 309 Ga. 376, 378 n.4 (846 SE2d 48) (2020), overruled in part on other grounds by Johnson v. State, 315 Ga. 876, 889 (3) n.11 (885 SE2d 725) (2023); see also Blackmon v. State, 306 Ga. 90, 91 n.1 (829 SE2d 75) (2019) (“[T]he time period for filing a notice of appeal is not tolled by an untimely motion for new trial.”). To be timely, a motion for new trial must be filed within 30 days of a judgment of conviction. OCGA § 5-5-40 (a). Here, Santos’s motion for new trial was filed 31 days after the entry of judgment of conviction and was thus not timely filed. See OCGA § 5-5-40 (a). While the trial court’s scheduling order noted that Santos had timely moved for a new trial, no timely filed motion for new trial appears in the record. As such, Santos’s motion for new trial did not extend the time for him to file his notice of appeal. See Pounds, 309 Ga. at 378 n.4. Accordingly, Santos’s notice of appeal, filed 141 days after the judgment of conviction was entered, is untimely and is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 12/02/2024 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.