Opinion
A23A1295
06-01-2023
JEFF MCCULLOUGH v. THE STATE.
The Court of Appeals hereby passes the following order:
In 2014, Jeff McCullough entered a negotiated guilty plea to voluntary manslaughter as a lesser included offense of malice murder, and the trial court sentenced him to 20 years. McCullough later filed a motion in arrest of judgment, which the trial court dismissed on August 16, 2022. On January 5, 2023, McCullough filed a notice of appeal of the trial court's order dismissing his motion in arrest of judgment. McCullough states in his notice of appeal that he did not learn that his motion was dismissed until December 2022. We lack jurisdiction.
A notice of appeal must be filed within 30 days of entry of the judgment or trial court order sought to be appealed. OCGA § 5-6-38 (a). The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction on this Court. Redford v. State, 357 Ga.App. 247, 250 (850 S.E.2d 447) (2020). McCullough's notice of appeal was filed 142 days after entry of the trial court's order dismissing his motion. Thus, this appeal is untimely and is therefore DISMISSED for lack of jurisdiction. See id.; Hill-Blount v. State, 336 Ga.App. 633, 634-635 (2) (785 S.E.2d 309) (2016).
To the extent that the trial court may have frustrated McCullough's ability to seek appellate review by failing to notify him of its order in a timely manner, McCullough's remedy is to petition the trial court to vacate and re-enter the order under OCGA § 9-11-60 (g). See Cambron v. Canal Ins. Co., 246 Ga. 147, 148-149 (1) (269 S.E.2d 426) (1980), disapproved in part by Wright v. Young, 297 Ga. 683, 684 n.3 (777 S.E.2d 475) (2015). If the order is vacated and re-entered, McCullough would be required to file a notice of appeal within 30 days from the date of re-entry. Id.