Jeffery Edward Hodges v. State ( 2020 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 17, 2020
The Court of Appeals hereby passes the following order:
A20A1702. 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 marijuana, more than one ounce. Within 30
days thereafter, he filed a pro se motion for new trial. Hodges later retained substitute
counsel, who filed an amended motion for new trial. The trial court denied the
motion, and Hodges appeals. We lack jurisdiction because the notice of appeal was
not timely filed.
“Under longstanding Georgia law, the 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 SE2d 133) (2015) (punctuation 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). However,
“when a motion for new trial . . . has been filed, the notice shall be filed within 30
days after the entry of the order granting, overruling, or otherwise finally disposing
of the motion[.]” Id. A motion for new trial must be filed within 30 days of a
judgment of conviction. OCGA § 5-5-40 (a). “[A] late-filed motion for new trial
cannot toll the time for filing a notice of appeal under OCGA § 5-6-38 (a).” Pounds
v. State, __ Ga. __ n.4 (846 SE2d 48) (Case No. S20A0470, decided July 1, 2020);
see also Blackmon v. State, 306 Ga. 90, 91 n.1 (829 SE2d 75) (2019) (“[T]he time
period for filing a notice of appeal is not tolled by an untimely motion for new trial.”).
Here, although Hodges filed a pro se motion for new trial and a counseled,
amended motion for new trial, neither motion operated to toll the deadline for filing
a notice of appeal from his judgment of conviction. The pro se motion for new trial
was a legal nullity. “A criminal defendant in Georgia does not have the right to
represent himself and also be represented by an attorney, and pro se filings by
represented parties are therefore unauthorized and without effect.” Tolbert v. Toole,
296 Ga. 357, 363 (3) (767 SE2d 24) (2014) (punctuation omitted). Such unauthorized
filings include motions for new trial. Pounds v. State, __ Ga. at __ (2) (b) (“if 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”). The duties of Hodges’s trial counsel
“extend[ed] for at least the 30 days after the entry of judgment when a notice of
appeal may be filed.” White v. State, 302 Ga. 315, 318 (2) (806 SE2d 489) (2017).
Nothing in the record indicates that trial counsel withdrew or was relieved of
representation during this period. Accordingly, Hodges’s pro se motion for new trial
was a legal nullity, see Pounds, __ Ga. at __ (2) (b), and therefore could not operate
to extend the time for filing a notice of appeal.
Although substitute counsel filed an amended motion for new trial, “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.” White, 302 Ga. at 320 (3); see also Pounds, __ Ga. at
__ (4) (“a legally void motion cannot be resuscitated by the appearance of counsel
alone, and even an attorney purporting to amend a prior filing that was a nullity
cannot change the void nature of the legally inoperative motion”) (punctuation
omitted). Rather, the amended motion for new trial must be treated as “the first and
only legally operative motion for new trial filed on [Hodges’s] behalf.” Pounds, __
Ga. at __ (4). However, that filing – made nearly nine months after the judgment of
conviction – was not timely.1 See OCGA § 5-5-40 (a). As such, it did not extend the
time for Hodges to file a notice of appeal. See Pounds, __ Ga. at __ n.4; Blackmon,
306 Ga. at 91 n.1. Accordingly, Hodges’s notice of appeal is untimely, and this case
is hereby DISMISSED for lack of jurisdiction.
To the extent that Hodges’s right to appeal has been frustrated by errors of
1
The judgment of conviction was entered on May 25, 2017, and the amended
motion for new trial was filed on February 15, 2018.
counsel, he may be entitled to an out-of-time appeal. See Rowland v. State, 264 Ga.
872, 875-876 (2) (452 SE2d 756) (1995). He therefore is informed of the following
in accordance with Rowland, 264 Ga. at 875-876 (2): This appeal has been dismissed
because you failed to file a timely notice of appeal. If you still wish to appeal, you
may petition the trial court for leave to file an out-of-time appeal. If the trial court
grants your request, you will have 30 days from the entry of that order to file a notice
of appeal referencing your conviction. If the trial court denies your request, you will
have 30 days from the entry of that order to file a notice of appeal referencing the
denial of your request for an out-of-time appeal. The clerk of court is DIRECTED to
send a copy of this order to Hodges as well as to Hodges’s attorney, who is also
DIRECTED to send a copy to Hodges.2
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
09/17/2020
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.
2
We note that if the trial court grants Hodges an out-of-time appeal, that order
will have the effect of “render[ing Hodges’s] initially untimely motion for new trial
ripe for review.” Pounds, __ Ga. at __ (4).