182 Ga. App. 477 - Johnson v. State

How this case has been cited

Cited by 7 later decisions — most recently November 2011

7 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

Beasley, Judge,

¶1dissenting.

¶2On July 3, 1986, the trial court entered an order allowing the appeal in the sole basis that “the State does not oppose the Motion” and consents to the order. A notice of appeal was tendered by defense counsel when the motion for out-of-time appeal was filed.

¶3Based on OCGA §§ 5-6-38 and 5-6-39, this court does not have jurisdiction and the appeal should be dismissed. A trial court has no jurisdiction to grant an extension of time for filing a notice of appeal where the application is not made before the expiration of 30 days. OCGA § 5-6-39 (d); Morris v. State, 115 Ga. App. 715 (155 SE2d 735) *480(1967). The consent by the state does not confer jurisdiction. Blackburn v. State, 169 Ga. App. 498 (314 SE2d 244) (1984).

Decided March 20, 1987Rehearing Denied April 2, 1987Thomas J. Hough, Jr., for appellant.Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

¶4An out-of-time appeal must be granted by a habeas court as the appropriate remedy when the petitioner has been found to have suffered a constitutional deprivation of counsel. Webb v. State, 254 Ga. 130 (327 SE2d 224) (1985). It may also be granted directly, upon a proper determination by the criminal trial court. Cannon v. State, 175 Ga. App. 741 (334 SE2d 342) (1985). In the first instance, this is not a habeas case. In the second, there is no finding of deprivation by the lower court in the record before us.