Sean Drake v. State ( 2017 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
July 28, 2017
The Court of Appeals hereby passes the following order:
A17A1693. SEAN DRAKE v. THE STATE.
A jury found Sean Drake guilty of armed robbery, aggravated assault, and
kidnapping, and the trial court sentenced him in May 2003. We affirmed his
convictions on direct appeal. Drake v. State, 266 Ga. App. 463 (597 SE2d 543)
(2004). In July 2016, he filed a motion to modify his sentence, which the trial court
denied on July 19, 2016. He then filed this direct appeal of the denial on August 29,
2016. We lack jurisdiction.
Pretermitting whether Drake has a right of direct appeal from the trial court’s
order, we lack jurisdiction because his appeal is untimely. Under OCGA § 5-6-38 (a),
a notice of appeal must be filed within 30 days after entry of the order to be appealed.
While Drake asserts that he did not initially receive notice of the trial court’s order
because it was sent to the wrong prison, the proper and timely filing of a notice of
appeal is an absolute requirement to confer jurisdiction on this Court. See Veasley
v. State, 272 Ga. 837, 838 (537 SE2d 42) (2000).1
1
Further, a trial court’s failure to timely notify a defendant of an order does not
extend the time to file an appeal, and the proper remedy in such situations is to file
in the trial court a motion to set aside the order or a motion for an out-of-time appeal.
See Veasley, 272 Ga. at 838-839.
Here, Drake filed his notice of appeal 41 days after the trial court entered its
order. Accordingly, his appeal is untimely and is hereby DISMISSED for lack of
jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
07/28/2017
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.