Nicholas Depaul Burse v. State ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
March 12, 2021
The Court of Appeals hereby passes the following order:
A21A1085. NICHOLAS DEPAUL BURSE v. THE STATE.
Following a trial at which Nicholas Depaul Burse was represented by counsel,
a jury found Burse guilty of armed robbery and other charges. On November 28,
2012, Burse filed a pro se motion for new trial, and on November 30, 2012, the trial
court entered the judgment of conviction. Burse’s counsel filed several amended
motions for new trial beginning in 2017. However, Burse did not file a timely motion
for new trial through counsel. The trial court denied Burse’s motions on January 22,
2021, and Burse filed the instant appeal from that order. However, we lack
jurisdiction.
“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, 309 Ga. 376, 378 n.4 (2) (b) (846 SE2d 48) (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 Burse filed a pro se motion for new trial and a counseled,
amended motion for new trial, these motions did not operate 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, 309 Ga. at 377 (2) (b) (“[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.”); see also White v. State, 302 Ga. 315, 318 (2) (806
SE2d 489) (2017) (the duties of trial counsel extend for at least the 30 days after the
entry of judgment of conviction when a notice of appeal may be filed). Nothing in the
record indicates that trial counsel withdrew or was relieved of representation when
Burse filed his pro se motion for new trial. Accordingly, Burse’s pro se motion for
new trial was a legal nullity, see Pounds, 309 Ga. at 377 (2) (b), and therefore could
not operate to extend the time for filing a notice of appeal.
Although 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, 309 Ga.
at 384 (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 [Burse’s] behalf.”
Pounds, 309 Ga. at 384 (4). However, that filing – made five years after the judgment
of conviction – was not timely. See OCGA § 5-5-40 (a). As such, it did not extend the
time for Burse to file a notice of appeal. See Pounds, 309 Ga. at 378 n.4 (2) (b);
Blackmon, 306 Ga. at 91 n.1. Accordingly, Burse’s notice of appeal is untimely, and
this case is hereby DISMISSED for lack of jurisdiction.
To the extent that Burse’s right to appeal has been frustrated by errors of
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 Burse as well as to Burse’s attorney, who is also
DIRECTED to send a copy to Burse.1
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
03/12/2021
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.
1
We note that if the trial court grants Burse an out-of-time appeal, that order
will have the effect of “render[ing Burse’s] initially untimely motion for new trial
ripe for review.” Pounds, 309 Ga. at 385 (4).