Timothy Lavon Duncan, Jr. v. State

• Court: Court of Appeals of Georgia
• Decided: April 16, 2013
• Docket: A13A1336
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,__________________ April 16, 2013

The Court of Appeals hereby passes the following order:

A13A1336. TIMOTHY LAVON DUNCAN, JR. v. THE STATE.

On April 25, 2012, Timothy Lavon Duncan, Jr., was convicted of possession of marijuana. Duncan timely moved for a new trial, which he subsequently withdrew. On October 19, 2012, he filed a notice of appeal. We lack jurisdiction. A notice of appeal must be filed within 30 days of the judgment being appealed. See OCGA § 5-6-38 (a). The timely filing of a motion for new trial extends the running of this 30-day clock until the trial court disposes of the motion. Id. Absent a court order resolving the motion, however, the appeal time is not extended. As our Supreme Court has ruled, “OCGA § 5-6-38 requires a trial court order granting, denying, or otherwise finally disposing of a party’s motion for new trial in order to extend the time for filing a notice of appeal.” Heard v. State, 274 Ga. 196, 197 (1) (552 SE2d 818) (2001). A unilaterally withdrawn motion for new trial, standing alone, does not toll the appeal time. Id. In this case, the trial court has not ruled on Duncan’s motion to withdraw his guilty plea. The time for filing his direct appeal, therefore, was not extended, and his notice of appeal was untimely because it was filed more than 30 days after his conviction. Id.; see also Simmons v. State, 276 Ga. 525 n.1 (579 SE2d 735) (2003). Accordingly, we cannot consider Duncan’s appeal, which is hereby DISMISSED. We note, however, that Duncan may be entitled to pursue an out-of-time appeal. He is therefore informed of the following in accordance with Rowland v. State, 264 Ga. 872 (452 SE2d 756) (1995): This appeal has been dismissed because your counsel failed to file a timely notice of appeal. 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 Duncan and Duncan’s attorney, and the latter is also directed to send a copy to Duncan.

Court of Appeals of the State of Georgia 04/16/2013 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.