Opinion
A24A1652
07-16-2024
ALEX JAY YUN v. THE STATE.
The Court of Appeals hereby passes the following order:
Following a jury trial, Alex Jay Yun was found guilty of aggravated stalking. The trial court entered the judgment of conviction and sentence on August 6, 2021. Yun filed an "Out of Time Motion for New Trial" on September 13, 2021, and he later filed an amended motion for new trial. On March 26, 2024, the trial court denied the motion for new trial, and Yun filed a notice of appeal on April 8, 2024. We, however, lack jurisdiction.
"[T]he proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court." Davis v. State, 330 Ga.App. 711, 711 (769 S.E.2d 133) (2015) (citation, punctuation, and emphasis omitted). Generally, a notice of appeal must be filed "within 30 days after entry of the appealable decision or judgment complained of." OCGA § 5-6-38 (a). A timely filed motion for new trial may extend the time in which to seek appellate review. However, "a late-filed motion for new trial cannot toll the time for filing a notice of appeal under OCGA § 5-6-38 (a)." Pounds v. State, 309 Ga. 376, 378 n.4 (846 S.E.2d 48) (2020), overruled in part on other grounds by Johnson v. State, 315 Ga. 876, 889 (3) n.11 (885 S.E.2d 725) (2023); see also Blackmon v. State, 306 Ga. 90, 91 n.1 (829 S.E.2d 75) (2019) ("[T]he time period for filing a notice of appeal is not tolled by an untimely motion for new trial."). To be timely, a motion for new trial must be filed within 30 days of a judgment of conviction. OCGA § 5-5-40 (a).
Here, Yun's motion for new trial was filed 38 days after entry of the judgment of conviction and sentence and was thus not timely. See id. As such, it did not extend the time for Yun to file a notice of appeal. See Pounds, 309 Ga. at 378 n.4. Accordingly, Yun's notice of appeal, filed more than two years after the judgment of conviction was entered, is untimely. This case is hereby DISMISSED for lack of jurisdiction.
In a scheduling order, the trial court noted that the State consented to Yun's out of time motion for new trial. However, under Georgia law, parties cannot confer jurisdiction by consent. See OCGA § 15-1-2; Davis, 330 Ga.App. at 715.