Opinion
A18A1650
06-26-2018
WILLIAMS v. The STATE.
Gerald A. Griggs, for appellant. Paul L. Howard, Jr., District Attorney, for appellee.
Gerald A. Griggs, for appellant.
Paul L. Howard, Jr., District Attorney, for appellee.
Rickman, Judge. In 2011, Clarence Williams was convicted of several child molestation offenses. Williams filed a timely motion for new trial, which he subsequently withdrew on March 19, 2018. That same day, he filed a notice of appeal.
"Before turning to the merits, we must first examine this Court’s jurisdiction over this appeal. It is the duty of this Court on its own motion to inquire into its jurisdiction." (Citation and punctuation omitted.) Cooper v. Spotts , 309 Ga. App. 361, 361 (1), 710 S.E.2d 159 (2011).
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." (Emphasis in original.) Heard v. State , 274 Ga. 196, 197 (1), 552 S.E.2d 818 (2001). See also Cooper , 309 Ga. App. at 364 (1), 710 S.E.2d 159. A unilaterally withdrawn motion for new trial, standing alone, does not toll the appeal time. Heard , 274 Ga. at 197 (1), 552 S.E.2d 818.
In this case, Williams voluntarily withdrew his motion for new trial. The trial court neither ruled on the motion nor granted him permission to withdraw it. 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. Heard , 274 Ga. at 197 (1), 552 S.E.2d 818 ; see also Simmons v. State , 276 Ga. 525, 525 n.1, 579 S.E.2d 735 (2003). Accordingly, we cannot consider Williams’s appeal, which is hereby dismissed.
We note, however, that Williams has been represented by counsel and 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 S.E.2d 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 opinion to Williams and Williams’s attorney, and the latter is also directed to send a copy to Williams.
Appeal dismissed .
McFadden, P. J., and Ray, J., concur.