Cunningham v. State

¶1dissenting.

¶2Applying the rules of procedure, I am of the opinion that the appeal must be dismissed.

¶3Defendant was convicted in a bench trial of robbery and sentenced April 24, 1984. Apparently by trial counsel but unsigned by anyone, an out-of-time motion for new trial was filed on July 10. The time for filing this motion could not be extended, OCGA § 5-6-39 (b), so it had to be deemed an extraordinary motion for new trial. OCGA §§ 5-5-40 and 41; Dyal v. State, 121 Ga. App. 50 (1) (172 SE2d 326) (1970). The motion was denied by order filed July 27. No appeal was taken.

¶4Nearly a year later, in April 1985, Cunningham himself wrote to the clerk requesting a free copy of the case papers.

¶5The next thing in the record is an order filed May 28, 1986, denying defendant’s “Amended Motion for New Trial,” but there is no such motion.1 The order was apparently inadvertent, as there already had been a ruling on the motion, almost two years earlier. “The motion (for new trial) may be amended any time on or before the ruling thereon.” OCGA § 5-5-40 (b). (Emphasis supplied.) Appeal was then attempted on the thirtieth day after the 1986 order; it states that it is from the judgment of April 1984, and it was filed by the original trial counsel, who represents appellant on appeal.

¶6Although we may grant an extension of time for the filing of a notice of appeal even without motion, it can only extend the time thirty days beyond the original due date. OCGA § 5-6-39 (a) (1), (c) and (d). That was at most September 1984.

¶7There is no jurisdiction to entertain the appeal. Knox v. State, 180 Ga. App. 564 (349 SE2d 753) (1986); Westerfield v. State, 169 Ga. App. 510 (313 SE2d 768) (1984).

¶8I am authorized to state that Judge Carley joins in this dissent.