Lewis Halle, Jr. v. State ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 12, 2021
The Court of Appeals hereby passes the following order:
A21A0781. LEWIS HALLE, JR. v. THE STATE.
Following a bench trial, the superior court found Lewis Halle, Jr., guilty of
sexual battery and entered his sentence on March 14, 2018. In August 2018, the
superior court granted Halle’s motion for an out-of-time appeal. More than seven
months later, he filed an initial, counseled motion for a new trial, which he amended
nearly a year after that.1 The superior court denied the motion on the merits in July
2020, and Halle filed a notice of appeal later that month. We dismissed the appeal on
grounds that, because Halle’s motion for a new trial was untimely, it did not toll the
time to file a notice of appeal, as a result of which his July 2020 notice of appeal was
untimely, as it was filed more than two years after his sentence was entered. See Halle
v. State, No. A21A0363 (Oct. 21, 2020); see also Pounds v. State, 309 Ga. 376, 378
(2) (b) n. 4 (846 SE2d 48) (2020) (an untimely motion for a new trial does not toll the
time to file a notice of appeal); Blackmon v. State, 306 Ga. 90, 91 n. 1 (829 SE2d 75)
(2019) (same); Hood v. State, 282 Ga. 462, 463-464 & n. 1 (651 SE2d 88) (2007) (to
be timely, a motion for a new trial filed after the grant of an out-of-time appeal must
be filed within 30 days of the order granting an out-of-time appeal).
1
For reasons that are unclear on the current record, Halle’s initial motion for
a new trial, filed in March 2019, was titled “Amended Motion for New Trial.”
Back in the superior court, Halle filed another motion for an out-of-time
appeal, which the court again granted. Halle then filed this timely direct appeal. We
lack jurisdiction.
A trial court order that denies (rather than dismisses) an untimely motion for
a new trial is invalid. Pounds, 309 Ga. at 385 (4). Consequently, the superior court’s
July 2020 denial of Halle’s untimely motion for a new trial is invalid. Nevertheless,
the superior court’s subsequent grant of an out-of-time appeal rendered Halle’s
initially untimely motion for a new trial ripe for review. See id.
Under OCGA § 5-6-34 (a) (1), appeals generally may be taken from “[a]ll final
judgments, that is to say, where the case is no longer pending in the court below.”
Halle’s instant notice of appeal – filed while his newly-ripened motion for a new trial
remains pending before the superior court – is premature. See Pounds, 309 Ga. at
381-382 (3), 385 (4); see also High v. State, 282 Ga. 244, 244 n. * (647 SE2d 270)
(2007). Accordingly, Halle was required to use the interlocutory appeal procedures
– including obtaining a certificate of immediate review from the trial court – to obtain
appellate review at this time. See OCGA § 5-6-34 (b); Hann v. State, 292 Ga. App.
719, 720 (1) (665 SE2d 731) (2008) (“A notice of appeal filed while a motion for new
trial is pending and unaccompanied by a proper certificate of immediate review does
not confer jurisdiction in the appellate courts.”); accord Pounds, 309 Ga. at 382 (3).
His failure to do so deprives us of jurisdiction over this direct appeal. Consequently,
this appeal is hereby DISMISSED, and the case is REMANDED for the superior
court to consider anew Halle’s motion for a new trial. See Pounds, 309 Ga. at 385 (4).
Should the superior court deny Halle’s motion for a new trial on remand, the
superior court clerk is DIRECTED to re-transmit the appeal to this Court and to
include a copy of this order in the record transmitted at that time. See Hann, 292 Ga.
App. at 720 (1) (a premature notice of appeal will ripen upon the filing of a trial court
order granting, overruling, or otherwise disposing of a motion for a new trial); accord
Pounds, 309 Ga. at 385 (4) n. 12. Halle need not file a second notice of appeal to
obtain appellate review at that time. See High, 282 Ga. at 244 n. *; Hann, 292 Ga.
App. at 720 (1).
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/12/2021
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.