Carl Smart v. State

Summary

The Georgia Court of Appeals dismissed Carl Smart's appeal from the denial of his out-of-time motion for new trial because the motion was filed more than 30 days after entry of the judgment of conviction and therefore did not toll the deadline for filing a notice of appeal. The court explained that Smart could seek permission from the trial court to file an out-of-time appeal and noted that an appeal from denial of an extraordinary motion for new trial would require compliance with discretionary appeal procedures.

Holdings

1. A motion for new trial filed more than 30 days after entry of the judgment of conviction is void and does not toll the 30-day period for filing a notice of appeal from the underlying judgment and sentence or for seeking an extension of time to do so.
2. An appeal from the denial of an extraordinary motion for new trial must comply with the discretionary-appeal procedures in OCGA § 5-6-35 (a) (7); because Smart did not follow those procedures, the Court of Appeals also lacked jurisdiction on that theory.

Questions Presented

1. Whether the Court of Appeals had jurisdiction over an appeal from the denial of a motion for new trial filed more than 30 days after entry of the judgment of conviction.
2. Whether the untimely motion for new trial could be treated as an extraordinary motion for new trial despite Smart's failure to follow the discretionary-appeal procedures.

Disposition

dismissed