Jeffery Edward Hodges v. State ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 12, 2021
The Court of Appeals hereby passes the following order:
A21A0854. JEFFERY EDWARD HODGES v. THE STATE.
Following a jury trial at which he was represented by counsel, Jeffery Edward
Hodges was convicted of possession of more than one ounce of marijuana, and the
superior court entered his sentence on May 25, 2017. On June 20, 2017, Hodges,
while still represented by counsel, filed a purported motion for a new trial pro se.
Following substitution of new counsel, Hodges filed a counseled “amended motion
for new trial” on February 15, 2018. The superior court purported to deny on the
merits Hodges’s motion for a new trial, as amended, on October 24, 2018, and
Hodges filed a notice of appeal to this Court on November 20, 2018. However, this
Court dismissed Hodges’s appeal for lack of jurisdiction, concluding that because his
pro se motion for a new trial was a nullity and because his counseled motion for a
new trial was untimely, these motions did not toll the deadline for filing his notice of
appeal. See Hodges v. State, Case No. A20A1702 (Sept. 17, 2020); see also Pounds
v. State, 309 Ga. 376, 377 (2) (b) (846 SE2d 48) (2020) (“[I]f a defendant files a
motion for new trial on his own behalf when he is still represented by counsel, that
motion is a legal nullity.”); White v. State, 302 Ga. 315, 320 (3) (806 SE2d 489)
(2017) (“[A] pleading purporting to amend a prior filing that was a nullity . . . does
not relate back in time to the date of the non-filing[.]”); Pounds, 309 Ga. at 378 n. 4
(2) (b) (“[A] late-filed motion for new trial cannot toll the time for filing a notice of
appeal under OCGA § 5-6-38 (a).”).
Back in the superior court, Hodges filed a motion for an out-of-time appeal,
which the court granted. Hodges 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
October 2018 denial of Hodges’s untimely motion for a new trial is invalid.
Nevertheless, the superior court’s subsequent grant of an out-of-time appeal rendered
Hodges’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[.]”
Hodges’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, Hodges 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 Hodges’s motion for a new trial. See Pounds, 309 Ga. at 385
(4).
Should the superior court deny Hodges’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. Hodges 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.