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Davis v. State

Court of Appeals of Georgia

February 17, 2015

DAVIS
v.
THE STATE

Burglary, etc. Clayton Superior Court. Before Judge Benefield, Senior Judge.

Appeal dismissed.

Sharee L. Davis, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

ELLINGTON, Presiding Judge. Phipps, C. J., Andrews, P. J., Doyle, P. J., Miller, Dillard, McFadden, Boggs, Ray, Branch and McMillian, JJ., concur. Barnes, P. J., concurs in judgment only.

OPINION

Page 134

Ellington, Presiding Judge.

A Clayton County jury found Jaylan Davis guilty beyond a reasonable doubt of burglary, OCGA § 16-7-1 (b); criminal trespass, OCGA § 16-7-21 (b) (1); and obstruction of a law enforcement officer, OCGA § 16-10-24 (a). Following the denial of his motion for a new trial, Davis appeals, challenging the sufficiency of the evidence and contending that the trial court violated his right to confront a witness, that the trial court imposed an unconstitutionally cruel and unusual punishment, and that he received ineffective assistance of counsel. For the reasons explained below, we dismiss this appeal.

" It is the duty of this [C]ourt to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction." (Punctuation and footnote omitted.) Deleon-Alvarez v. State, 324 Ga.App. 694, 698 (1) (751 S.E.2d 497) (2013).[1] Under longstanding Georgia law, " [t]he proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate

Page 135

court." (Citation and punctuation omitted; emphasis in original.) Cody v. State, 277 Ga. 553 (592 S.E.2d 419) (2004).[2]

The record shows the following with regard to this jurisdictional requirement. The trial court entered judgment on the jury's verdict on May 16, 2013. Upon sentencing Davis, the trial court advised him of his right to appeal from the judgment within 30 days. The trial court also informed him that, if he desired appointed appellate counsel, he should inform the court and that a hearing would be scheduled to determine whether he was indigent and entitled to appointed counsel. Davis, still represented by his retained trial counsel, filed a " Motion for New Trial" on September 11, 2013, more than 30 days after the entry of judgment. Davis, represented by new post-conviction counsel, amended the Motion for New Trial three times. None of Davis's pleadings provided any explanation for the delay in filing his initial Motion for New Trial. The trial court denied the Motion for New Trial, as amended, on February 25, 2014. Davis filed his " Notice of Appeal" on March 13, 2014.

Georgia's Appellate Practice Act provides:

A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of; but [330 Ga.App. 712] when a motion for new trial ... has been filed, the notice shall be filed within 30 days after the entry of the order ...

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