Thomas Edward Stokes, Jr. v. State

• Court: Court of Appeals of Georgia
• Decided: May 19, 2016
• Docket: A16A1067
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 17, 2016

The Court of Appeals hereby passes the following order:

A16A1067. THOMAS EDWARD STOKES, JR. v. THE STATE.

On November 27, 2013, Thomas Edward Stokes, Jr. was convicted of rape, aggravated sexual battery and kidnapping with bodily injury. He filed a timely motion for new trial. However, on January 21, 2016, Stokes filed a notice of appeal from his convictions. In this notice of appeal he “waives his previously filed motion for new trial and proceeds directly to appeal.” We lack jurisdiction. A notice of appeal must be filed within 30 days of the entry of the order sought to be appealed. OCGA § 5-6-38 (a). The proper and timely filing of the notice of appeal is an absolute requirement to confer appellate jurisdiction upon this Court. Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Although the filing of a motion for a new trial generally extends the deadline for filing an appeal, see OCGA § 5-6-38 (a), Stokes waived his previously filed motion for new trial in this case prior to entry of an order on that motion. Thus, Stokes’s notice of appeal, filed more than two years after entry of the order he seeks to appeal, is untimely. Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction. Because Stokes is represented by counsel, he is informed of the following in accordance with Rowland v. State, supra at 875-876: This appeal has been dismissed because you failed to file a timely notice of appeal from your judgment of conviction. If you still wish to appeal, you may petition the trial court for leave to file an out-of-time appeal. If the trial court grants your request, you will have 30 days from the entry of that order to file a notice of appeal referencing your conviction. If the trial court denies your request, you will have 30 days from the entry of that order to file a notice of appeal referencing the denial of your request for an out-of-time appeal. The Clerk of Court is directed to send a copy of this order to Stokes and to his attorney, and the latter also is directed to send a copy to Stokes.

Court of Appeals of the State of Georgia 05/17/2016 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.