Tyequan Garvin v. State

• Court: Court of Appeals of Georgia
• Decided: July 2, 2024
• Docket: A24A1645
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ July 02, 2024

The Court of Appeals hereby passes the following order:

A24A1645. TYEQUAN GARVIN v. THE STATE

Following a jury trial, Tyequan Garvin was found guilty of home invasion, hijacking a motor vehicle, armed robbery, and aggravated assault. He was sentenced on December 4, 2023 and filed a timely motion for new trial four days later. On January 8, 2024, Garvin filed a motion to withdraw the motion for new trial, as well as a notice of appeal. The direct appeal then docketed in this Court. We lack jurisdiction because the appeal is premature. Under OCGA § 5-6-34 (a) (1), appeals generally may be taken from “[a]ll final judgments, that is to say, where the case is no longer pending in the court below.” And under OCGA § 5-6-38 (a), “[a] notice of appeal must be filed within 30 days of the judgment being appealed, or, if a motion for new trial is filed within 30 days of the judgment, ‘the notice shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.’” Hann v. State, 292 Ga. App. 719, 719 (1) (665 SE2d 731) (2008) (quoting OCGA § 5-6-38 (a)). Here, the record contains no indication that the trial court has ruled on Garvin’s motion for a new trial or his motion to withdraw such motion. See Heard v. State, 274 Ga. 196, 196-197 (1) (552 SE2d 818) (2001) (holding that a party may not withdraw a motion for new trial by filing a “dismissal” of the motion; a trial court must enter an order in connection with that action). Therefore, his notice of appeal — filed while his motion for new trial remains pending before the trial court — is premature. “A notice of appeal filed while a motion for new trial is pending and unaccompanied by a proper certificate of immediate review does not confer jurisdiction in the appellate courts.” Hann, 292 Ga. App. at 720 (1); see also OCGA § 5-6-34 (b). Consequently, we lack jurisdiction over this premature appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 07/02/2024 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.