Valente Rodriguez Moreno v. State

Opinion

Court of Appeals of the State of Georgia

ATLANTA,__________________ August 01, 2014

The Court of Appeals hereby passes the following order:

A14A1922. VALENTE RODRIGUEZ MORENO v. THE STATE.

Valente Rodriguez Moreno was convicted of two counts of child molestation on October 18, 2013. On November 13, 2013, trial counsel filed a timely notice of appeal. Moreno retained new counsel and on November 19, 2013, he filed an “Unperfected Motion for New Trial” and a “Motion to File Out of Time Appeal,” presumably because the motion for new trial was not filed within 30 days of entry of the judgment of conviction. See OCGA § 5-5-40 (a). The trial court has not entered an order on either motion. Therefore, the notice of appeal filed in this case is premature until disposition of the motion for new trial. Brown v. State, 208 Ga. App. 726 (431 SE2d 726) (1993); O’Kelly v. State, 196 Ga. App. 860 (1) (397 SE2d 197) (1990).

Accordingly, this case is hereby REMANDED to the trial court for disposition of the motion for new trial. Because the premature notice of appeal will become effective upon entry of a denial of a new trial motion, no new notice of appeal need be filed if the motion is denied. See O’Kelly, supra at 860; Shirley v. State, 188 Ga. App. 357 (373 SE2d 257) (1988).

Court of Appeals of the State of Georgia 08/01/2014

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.