Dante Hayward v. State ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 22, 2021
The Court of Appeals hereby passes the following order:
A21A1572. DANTE HAYWARD v. THE STATE.
On August 6, 2019, following a bench trial, the trial court found Dante
Hayward guilty of multiple offenses. Two days later, the court entered an order
denying Hayward’s motion to suppress. Hayward’s attorney filed a timely motion for
new trial. In September 2020, Hayward filed a pro se notice of appeal from the denial
of his motion to suppress. In March 2021, Hayward filed a second pro se notice of
appeal, and the trial court clerk transmitted the record to us. We lack jurisdiction.
Where a motion for new trial is timely filed, jurisdiction remains with the trial
court. See Jones v. State, 309 Ga. App. 149, 149 (1) (709 SE2d 593) (2011).
Accordingly, any notice of appeal filed while a motion for new trial remains pending
confers no jurisdiction on this Court. See id.; Drake v. Clutter, 194 Ga. App. 644, 644
(391 SE2d 473) (1990).
Under these circumstances, we lack jurisdiction to consider this appeal, which
is hereby DISMISSED.1
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
06/22/2021
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.
1
As noted, the motion for new trial was filed by trial counsel. In White v. State,
the Supreme Court made clear that, unless the trial court permits an attorney to
withdraw, that attorney’s duty to his client extends at least through the end of the term
in which sentence was entered, “during which time the court retains authority to
change its prior orders and judgments on motion or sua sponte for the purpose of
promoting justice.” White v. State, 302 Ga. 315, 319 (2) (806 SE2d 489) (2017).
Nothing in the record indicates that counsel has been relieved of representation. Thus,
it is unclear whether Hayward’s trial counsel is under a continuing duty to represent
him. If the attorney was under such duty, Hayward was unable to file a pro se notice
of appeal. See id.; see also Tolbert v. Toole, 296 Ga. 357, 363 (3) (767 SE2d 24)
(2014) (holding that a criminal defendant may not represent himself while represented
by counsel). We note that, in May 2020, Hayward filed a motion for the appointment
of new counsel, but the trial court has not ruled on this motion.