PORTER v. THE STATE

Supreme Court of Georgia1999-09-20No. S99A1265

271 Ga. 498521 S.E.2d 566

Summary · law.co

Holding. The appellate court dismissed the appeal for lack of jurisdiction because the underlying motion for new trial was void under state law for untimeliness, and the subsequent notice of appeal could not cure this jurisdictional defect. The court directed that Porter may seek an out-of-time appeal from the trial court if he can establish that counsel's ineffectiveness, not his own inaction, caused the procedural failure.

Eric Porter was convicted of malice murder and sentenced to life imprisonment. His trial counsel filed a motion for new trial two days after the 30-day deadline prescribed by statute. Although Porter filed his notice of appeal within 30 days of the trial court's denial of that late motion, the late filing of the motion for new trial was void and did not extend the original 30-day appeal deadline. Because Porter's motion for new trial did not comply with procedural requirements and was not accompanied by any explanation for the delay, it could not be treated as an extraordinary motion for new trial.

The court determined that Porter's appeal could not proceed because he failed to comply with jurisdictional requirements. The court noted that while an out-of-time appeal may be available as a remedy when counsel's negligence causes loss of appellate rights, such relief must be sought in the trial court first. Porter must demonstrate to the trial court that his appellate counsel's failure, rather than his own negligence, caused the procedural deficiency.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an untimely motion for new trial tolls the deadline for filing a notice of appeal
Whether an untimely motion for new trial can be treated as an extraordinary motion without explanation for the delay
Whether dismissal for procedural defects violates due process when an out-of-time appeal remedy is available
Whether counsel's error in missing appellate deadlines justifies out-of-time appellate review

Procedural posture

Following conviction and sentencing, Porter's trial counsel filed a late motion for new trial, and the trial court later denied it; Porter then filed a notice of appeal within 30 days of that denial, but the appellate court examined whether jurisdiction existed.

Authorities cited

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Opinion · public domain

majority opinion

Carley, Justice.

A jury found Eric Porter guilty of malice murder and, on August 27, 1998, the trial court entered its judgment of conviction and imposed a life sentence. Porter’s counsel filed a motion for new trial on September 30, 1998, which was two days late. See OCGA § 5-5-40 (a). On March 31, 1999, the trial court denied the motion for new trial and, on April 30, 1999, Porter, who is now represented by new appellate counsel, filed a notice of appeal to this Court.

“ ‘ “The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” (Cit.)’ [Cit.]” (Emphasis in original.) Rowland v. State, 264 Ga. 872 (1) (452 SE2d 756) (1995). Although Porter did file his notice of appeal within 30 days of the denial of his motion for new trial, that motion was void because he did not file it within 30 days of the entry of the conviction and imposition of the sentence. Johnson v. State, 227 Ga. 219 (180 SE2d 94) (1971). Compare Harrison v. Harrison, 229 Ga. 692 (1) (194 SE2d 87) (1972) (prematurely filed motion for new trial).

To allow untimely filed motions, and thereby toll or delay the time for filing a notice of appeal, would violate the . . . provisions of [OCGA § 5-6-39 (b)], prohibiting extensions of time for filing such motions, as well as ignore the further mandate of [OCGA § 5-6-39 (d)], that requires within 30 days either the filing of a notice of appeal or the obtaining of an extension of time therefor.

Mayo v. State, 148 Ga. App. 213, 214 (251 SE2d 80) (1978). Thus, Porter’s void motion for new trial did not toll the 30-day limit within which he was required either to file a notice of appeal from the underlying judgment and sentence or to seek from the trial court an extension of time for doing so. Johnson v. State, supra; Williamson v. State ofGa., 182 Ga. App. 49 (354 SE2d 868) (1987). We cannot construe Porter’s untimely motion for new trial as an extraordinary motion for new trial, since it was unaccompanied by any attempt to show “some good reason . . . why the motion was not made during [the 30-day] period” following entry of the judgment and sentence. OCGA § 5-5-41 (a). See Jarrará v. Copeland, 205 Ga. App. 20, 21 (421 SE2d 84) (1992); Riggins v. State ofGa., 197 Ga. App. 612 (399 SE2d 96) (1990). Compare Gibbs v. State, 213 Ga. App. 117 (443 SE2d 708) (1994). Therefore, Porter has failed to invoke this Court’s jurisdiction and, lacking jurisdiction, we cannot address the merits of his enumerations of error.

[A]ttempts to provide sua sponte appellate review of criminal appeals notwithstanding incomplete appellate filings ... do a disservice to the courts, the criminal defendant, and appellate counsel. The practice requires the appellate court to ignore jurisdictional and procedural statutes and rules ....

Rowland v. State, supra at 874 (1).

It is immaterial that the untimely motion for new trial was filed by the attorney representing Porter, rather than by Porter acting pro se.

[T]he ineffectiveness of appellate counsel can result in the dismissal of an appeal of right without violating the defendant’s right to due process as long as the defendant’s due process right to an appeal is protected by provision of a “ ‘remedy for frustrated right of appeal.’ ” [Cit.]

Rowland v. State, supra at 875 (2). Since an out-of-time appeal is an available remedy where the loss of the right of conventional appellate review is due to defense counsel’s error, “we may dismiss an appeal of right for failure to follow appellate procedural prerequisites. [Cit.]” Rowland v. State, supra at 875 (2).

An out-of-time appeal is not authorized in every criminal case which involves a failure by counsel to comply with the applicable pro cedures necessary to invoke this Court’s jurisdiction. Such an appeal “is not authorized if the loss of the right to appeal is not attributable to ineffective assistance of counsel but to the fact that the defendant himself slept on his rights. [Cit.]” Cannon v. State, 175 Ga. App. 741, 742 (334 SE2d 342) (1985). Therefore, this Court cannot grant Porter an out-of-time appeal, since a hearing must be held to determine whether the untimeliness of this motion for new trial was attributable to Porter himself or to his then legal representative. To obtain an out-of-time appeal, Porter must apply for that relief in the trial court and establish “to [that] court’s satisfaction that the appellate procedural deficiency was due to appellate counsel’s failure to perform routine duties. . . .” Rowland v. State, supra at 876 (2). See also Cannon v. State, supra.

Decided September 20, 1999.

Lynn M. Friedewald, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Daniel G. Ashburn, Assistant Attorney General, for appellee.

Accordingly, we dismiss this appeal and order that a copy of this opinion be sent to Porter’s present appellate counsel with direction to send a copy to Porter. If Porter subsequently seeks and obtains permission from the trial court to pursue an out-of-time appeal, he then will have 30 days within which to file his noticé of appeal to this Court. If the trial court denies an out-of-time appeal, Porter will have a 30-day period within which to file a notice of appeal to this Court.

Appeal dismissed.

All the Justices concur.