The fact that the notice of appeal filed on September 23, 1996, in this case designates both the judgment of conviction and the denial of the extraordinary motion for new trial as the subject of the appeal does not render this case subject to a direct appeal. Regardless of that designation, because no viable direct appeal was filed in this case, the appeal of the denial of appellant's extraordinary motion for new trial is, perforce, separate from the original appeal. Consequently, this is an appeal of the denial of the extraordinary motion for new trial which was filed "separate" from an "original appeal," within the meaning of OCGA § 5-6-35 (a) (7). A direct appeal does not lie. In addition, the position taken in Walls v. State, supra, was rejected by the majority of this court in the whole court case of Bohannon v. State, 203 Ga. App. 783 ( 417 S.E.2d 679) ( Bohannon I). Although Bohannon I was reversed by our Supreme Court (see Bohannon v. State, 262 Ga. 697 ( 425 S.E.2d 653) ( Bohannon II)), the reversal was based on the conclusion that the appeal arose from the trial court's grant of an out-of-time motion for new trial, and not from disagreement with the rationale espoused in Bohannon. The Supreme Court held that "[t]he judgment of the Court of Appeals is reversed because the record shows that the trial court granted an out-of-time appeal and, consequently, this case is not subject to the rules governing extraordinary motions for new trial; that is, no application for appeal was required.

Where, however, a party obtains permission from the trial court to file an out-of-time motion for new trial and the trial court then denies the motion on its merits, a party is entitled to file a direct appeal in which the appellate court addresses the merits of the appeal from the denial of the out-of-time motion for new trial. Bohannon v. State, 262 Ga. 697 ( 425 S.E.2d 653) (1993); Vick v. State, 237 Ga. App. 762 ( 516 S.E.2d 815) (1999). See also Balkcom v. State, 227 Ga. App. 327, 328 ( 489 S.E.2d 129) (1997) (where the trial court did not grant leave to file an out-of-time motion for new trial, the pleading is treated as an extraordinary motion for new trial, the appeal of the denial of which must come by application under OCGA § 5-6-35(a)(7)).

On February 6, 2004, however, the trial court granted Hood's pro se motion for an out-of-time motion for new trial. See Bohannon v. State, 262 Ga. 697 ( 425 SE2d 653) (1993). Although the record does not show that any such motion was filed, the order refers to a hearing on a habeas corpus petition filed by Hood at which the motion was apparently made.

Id. Bohannon v. State, 262 Ga. 697 ( 425 SE2d 653) (1993). We have found no subsequent cases negating our conclusion that the majority's position in Bohannon and our holding in Balkcom, supra, are still valid.

Brown v. State, 208 Ga. App. 726, 727 ( 431 S.E.2d 726) (1993). The Georgia Supreme Court has expressly held that a motion for leave to file dan out-of-time motion for new trial, rather than for leave to file an out-of-time appeal, does not by definition constitute an extraordinary motion for new trial.Bohannon v. State, 262 Ga. 697 ( 425 S.E.2d 653) (1993). A direct appeal is appropriate from the denial on the merits of an out-of-time motion for new trial where the trial court found that the lack of diligence in filing a timely motion was attributable to counsel and not to the criminal appellant.

The State's position that this appeal is procedurally foreclosed lacks merit. See Bohannon v. State, 262 Ga. 697 ( 425 S.E.2d 653) (1993). As a fundamental principle of law,

However, nothing of record reflects that these claims were presented to the trial court for determination, either by an amended motion for new trial or in an application for an out-of-time appeal to make an out-of-time motion for new trial upon this special ground. See Bohannon v. State, 262 Ga. 697 ( 425 S.E.2d 653). Accordingly, this issue is procedurally defaulted and presents nothing to review. Gantt v. State, 229 Ga. App. 207, 209(3) ( 493 S.E.2d 608).

Perry Vick was convicted of aggravated assault, terroristic threats, hindering a law enforcement officer, fleeing and attempting to elude an officer, and possession of a firearm by a convicted felon. After the trial court granted an out-of-time appeal but denied the motion for new trial, Vick filed this direct appeal. See Bohannon v. State, 262 Ga. 697 ( 425 S.E.2d 653) (1993). Vick challenges the sufficiency of the evidence on certain counts, and contends the trial court erred by refusing to allow him to present his own closing argument.

In the case sub judice, defendant did not file a motion for new trial, motion in arrest of judgment, or motion for judgment notwithstanding the verdict within 30 days after entry of his judgment of conviction and sentence. Defendant waited over three months after his conviction to file, pro se, a motion for out-of-time appeal and/or extraordinary motion for new trial. Although the order denying this motion appears to be directly appealable ( Bohannon v. State, 262 Ga. 697 ( 425 S.E.2d 653)), defendant did not designate in his notice of appeal that he was appealing the denial of his motion for out-of-time appeal and/or extraordinary motion for new trial. Nor does he enumerate error relating to the trial court's reasons for denying this motion.

For aught that appears of record, however, this issue was never presented to the trial court for determination, either by an amended motion for new trial or in an application for an out-of-time appeal in order to make an out-of-time motion for new trial on this special ground. See, e.g., Bohannon v. State, 262 Ga. 697 ( 425 S.E.2d 653). By proceeding directly with this appeal without pursuing an evidentiary hearing on trial counsel's alleged ineffectiveness, we conclude the issue has been procedurally defaulted and presents nothing for review. Glover v. State, 266 Ga. 183 (2) ( 465 S.E.2d 659). Judgment affirmed. Beasley and Smith, JJ., concur.