Opinion
A25A0734
11-27-2024
DONNIE WAYNE PHELPS v. THE STATE.
The Court of Appeals hereby passes the following order:
On August 22, 2024, Donnie Wayne Phelps entered a counseled guilty plea to computer pornography, obscene internet contact with a child, and criminal attempt to commit a felony. On October 31, 2024, Phelps, proceeding pro se, filed a motion for new trial. The trial court dismissed the motion for new trial as untimely on November 1, 2024, and Phelps appeals. 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 extends the time in which to seek appellate review. However, an untimely motion for new trial does not toll the time for filing a notice of appeal under OCGA § 5-6-38 (a). Hill-Blount v. State, 336 Ga.App. 633, 634-635 (2) (785 S.E.2d 309) (2016); 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, pretermitting whether a motion for new trial was the proper vehicle for challenging his negotiated guilty plea, Phelps's motion for new trial was untimely filed 70 days after entry of the judgment of conviction and sentence. See id. As such, it did not extend the time for Phelps to file a notice of appeal. See Hill-Blount, 336 Ga.App. at 634-635 (2). Accordingly, Phelps's notice of appeal is untimely and this case is hereby DISMISSED for lack of jurisdiction.