Opinion
A25A0040
08-06-2024
KEITH BARBER v. THE STATE.
The Court of Appeals hereby passes the following order:
In 2017, Keith Barber was convicted of aggravated assault with a deadly weapon and possession of a firearm by a convicted felon, and sentenced to 20 years in confinement. We affirmed Barber's convictions and sentence on appeal. Barber v. State, Case No. A20A1797 (Dec. 21, 2020). In 2021, Barber filed a motion for sentence modification, challenging his aggravated assault conviction and resulting sentence based on the sufficiency of the evidence presented at trial. In 2024, Barber filed an extraordinary motion for new trial on the same grounds. In a single order, the trial court dismissed the motion for sentence modification and denied the extraordinary motion for new trial, and Barber filed this direct appeal. As explained below, this appeal must be dismissed.
Regardless of nomenclature, Barber's motion for sentence modification did not challenge his sentence, but instead challenged the validity of his underlying conviction. See Roberts v. State, 286 Ga. 532, 532 (690 S.E.2d 150) (2010); Sledge v. State, 312 Ga.App. 97, 98 (1) (717 S.E.2d 682) (2011) ("[c]ourts should examine the substance of a motion, rather than its nomenclature, to determine what sort of relief is sought"). However, "a petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case," Harper v. State, 286 Ga. 216, 218 (1) (686 S.E.2d 786) (2009), and any appeal from an order denying or dismissing such a petition or motion must be dismissed, see Roberts, 286 Ga. at 532; Harper, 286 Ga. at 218 (2).
In addition, an appeal from an order denying an extraordinary motion for new trial must be initiated by filing an application for discretionary review. OCGA § 5-6-35 (a) (7), (b); Balkcom v. State, 227 Ga.App. 327, 329 (489 S.E.2d 129) (1997). "Compliance with the discretionary appeals procedure is jurisdictional." Smoak v. Dept. of Human Resources, 221 Ga.App. 257, 257 (471 S.E.2d 60) (1996). Barber's failure to follow the discretionary review procedure thus deprives us of jurisdiction over this direct appeal. See id.
For the above reasons, this appeal is hereby DISMISSED.