Porter v. State, 521 S.E.2d 566 (Ga. 1999). · Go Syfert
Porter v. State, 521 S.E.2d 566 (Ga. 1999). Cases Citing This Book View Copy Cite
79 citation events (79 in the last 25 years) across 2 distinct courts.
Strongest positive: Cook v. State (ga, 2022-03-15)
Treatment trajectory · 2001 → 2026 · click a year to view as-of
2001 2013 2026
Top citers, strongest first. 19 distinct citers. How cited ↗
examined Cited as authority (quoted) Cook v. State (4×) also: Cited as authority (rule)
Ga. · 2022 · quote attribution · 2 verbatim quotes · confidence low
to obtain an out-of-time appeal, porter must apply for that relief in the trial court . . . .
examined Cited as authority (quoted) Delevan v. State (2×)
Ga. Ct. App. · 2018 · signal: see also · quote attribution · 2 verbatim quotes · confidence low
the proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.
discussed Cited as authority (quoted) Daniel Adam Delevan v. State (2×) also: Cited "see, e.g."
Ga. Ct. App. · 2018 · signal: see also · quote attribution · 1 verbatim quote · confidence low
the proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.
discussed Cited as authority (rule) Pounds v. State (2×)
Ga. · 2020 · confidence medium
And, generally speaking, an untimely motion for new trial cannot be construed “as an extraordinary motion for new trial [if] it [is] unaccompanied by any attempt to show ‘some good reason . . . why the motion was not made during (the 30-day) period’ following entry of the judgment and sentence.” Porter v. State, 271 Ga. 498, 499 ( 521 SE2d 566 ) (1999) (quoting OCGA § 5-5-41 (a)). (b) Relevant Precedent Regarding Motions for New Trial.
discussed Cited as authority (rule) Watkins v. the State
Ga. Ct. App. · 2017 · confidence medium
“An out-of-time appeal is not authorized in every criminal case which involves a failure by counsel to comply with the applicable procedures necessary to invoke [the appellate court’s] jurisdiction.” Porter v. State, 271 Ga. 498, 499-500 ( 521 SE2d 566 ) (1999).
discussed Cited as authority (rule) Davis v. the State
Ga. Ct. App. · 2015 · confidence medium
Because Davis failed to file his motion for new trial within the time allowed, “that motion was void... [and] did not toll the 30-day limit within which he was required either to file a notice of appeal from the underlying judgment and sentence or to seek from the trial court an extension of time for doing so.” (Citation and punctuation omitted.) Porter v. State, 271 Ga. 498, 498-499 ( 521 SE2d 566 ) (1999). 4 As the Supreme Court of Georgia explained, [t]o allow untimely filed motions, and thereby toll or delay the time for filing a notice of appeal, would violate the provisions of OCGA �…
discussed Cited as authority (rule) Alex B. Johnson v. Cach, LLC
Ga. Ct. App. · 2013 · confidence medium
Although OCGA § 5-6-39 (a) (1) permits a court to grant a 30-day extension for the filing of a notice of appeal, our jurisdiction over an appealable order “requires within 30 days either the filing of a notice of appeal or the obtaining of an extension of time therefor.” (Citation omitted.) Porter v. State, 271 Ga. 498, 499 ( 521 SE2d 566 ) (1999).
discussed Cited as authority (rule) Gregory Weber v. State
Ga. Ct. App. · 2012 · confidence medium
However, our jurisdiction over an appealable order “requires within 30 days either the filing of a notice of appeal or the obtaining of an extension of time therefor.” (Citation and punctuation omitted.) Porter v. State, 271 Ga. 498, 499 ( 521 SE2d 566 ) (1999).
discussed Cited as authority (rule) Hood v. State
Ga. Ct. App. · 2006 · confidence medium
OCGA§ 5-6-39 (b);Porter v. State, 271 Ga. 498, 499 ( 521 SE2d 566 ) (1999). 3 Consequently, after the grant of permission to file an out-of-time motion for new trial, Hood had only 30 days in which to either file a notice of appeal or a motion for new trial, 4 Rowland v. State, supra, 264 Ga. at 876 (2), notwithstanding the trial court’s order.
discussed Cited as authority (rule) Jackson v. State
Ga. · 2005 · confidence medium
Jackson’s allegation that he was deprived of the right to direct appeal due to trial counsel’s ineffective assistance requires that a trial court conduct a hearing to determine whether the failure to pursue a timely direct appeal “was attributable to [Jackson] himself or his then legal representative.” Porter v. State, 271 Ga. 498, 500 ( 521 SE2d 566 ) (1999).
cited Cited as authority (rule) Fulton v. State
Ga. · 2003 · confidence medium
Wicks v. State, 277 Ga. 121 ( 587 SE2d 21 ) (2003); Porter v. State, 271 Ga. 498, 498-499 ( 521 SE2d 566 ) (1999).
discussed Cited as authority (rule) Smith v. State
Ga. Ct. App. · 2003 · signal: cf. · confidence medium
Cf. Porter v. State, 271 Ga. 498, 499 ( 521 SE2d 566 ) (1999) (untimely motion for new trial does not toll time for filing notice of appeal from conviction under OCGA § 5-6-38 (a)); Ross v. State, 259 Ga. App. 246, 247-248 ( 576 SE2d 633 ) (2003) (same); Peters v. State, 237 Ga. App. 625 ( 516 SE2d 331 ) (1999) (same).
discussed Cited as authority (rule) Jordan v. State
Ga. Ct. App. · 2001 · signal: cf. · confidence medium
Cf. Porter v. State, 271 Ga. 498, 499 ( 521 SE2d 566 ) (1999) (court had no jurisdiction to consider appeal of the denial of an out-of-time motion for new trial because the record did not show that appellant had shown the trial court that the failure to file a timely motion was due to appellate counsel’s failure to perform routine duties); Balkcom v. State, 227 Ga. App. at 328 (on appeal, criminal appellant conceded that his motion for new trial was an extraordinary one). 2.
discussed Cited "see" Washington v. State (2×)
Ga. · 2003 · signal: see · confidence high
See Porter v. State, 271 Ga. 498 , 521 S.E.2d 566 (1999).
discussed Cited "see" Washington v. State (2×)
Ga. · 2003 · signal: see · confidence high
See Porter v. State, 271 Ga. 498 ( 521 SE2d 566 ) (1999).
discussed Cited "see" Washington v. State (2×)
Ga. · 2003 · signal: see · confidence high
See Porter v. State, 271 Ga. 498 ( 521 SE2d 566 ) (1999).
discussed Cited "see, e.g." Collins v. the State (2×)
Ga. Ct. App. · 2016 · signal: see, e.g. · confidence medium
See, e.g., Porter v. State, 271 Ga. 498, 499-500 ( 521 SE2d 566 ) (1999); Whitfield v. State, 313 Ga. App. 297, 299 (1) ( 721 SE2d 211 ) (2011). 7 Unlike a petition to remove a listing on the sexual offender registry, there is no similar statutory procedure under the First Offender Act to address the trial court’s judgment in this case.
discussed Cited "see, e.g." Nesbitt v. State (2×)
Ga. Ct. App. · 2008 · signal: see also · confidence medium
J., and Johnson, P. J., concur. 1 The record also indicates that Nesbitt was indigent and sought the appointment of appellate counsel in March 1990. 2 Hudson v. State, 278 Ga. 409 (1) ( 603 SE2d 242 ) (2004) (citations and punctuation omitted). 3 Floyd v. State, 279 Ga. App. 21, 23 ( 630 SE2d 168 ) (2006) (punctuation and footnotes omitted). 4 Ray v. State, 287 Ga. App. 492 ( 652 SE2d 165 ) (2007) (citation omitted). 5 Simmons v. State, 276 Ga. 525, 526 ( 579 SE2d 735 ) (2003) (citations omitted); Ray, supra at 493 . 6 Hudson, supra at 410 , distinguishing Dykes v. State, 266 Ga. App. 635, 636…
discussed Cited "see, e.g." Ray v. State (2×)
Ga. Ct. App. · 2007 · signal: see also · confidence low
See also Porter v. State, 271 Ga. 498 ( 521 SE2d 566 ) (1999) (hearing required where the question is in dispute).
Retrieving the full opinion text from the archive…
Porter
v.
the State
S99A1265.
Supreme Court of Georgia.
Sep 20, 1999.
521 S.E.2d 566
1999 Ga. LEXIS 742
Lynn M. Friedewald, for appellant., J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Daniel G. Ashburn, Assistant Attorney General, for appellee.
Carley.
Cited by 28 opinions  |  Published
2 passages pin-cited by 3 cases
Pinpoint authority: bottom 67%
Citer courts: Court of Appeals of Georgia (3) · Supreme Court of Georgia (2)
Carley, Justice.

A jury found Eric Porter guilty of malice murder and, on August 27, 1998, the trial court entered its judgment of conviction and imposed a life sentence. Porter’s counsel filed a motion for new trial on September 30, 1998, which was two days late. See OCGA § 5-5-40 (a). On March 31, 1999, the trial court denied the motion for new trial and, on April 30, 1999, Porter, who is now represented by new appellate counsel, filed a notice of appeal to this Court.

“ ‘ “The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” (Cit.)’ [Cit.]” (Emphasis in original.) Rowland v. State, 264 Ga. 872 (1) (452 SE2d 756) (1995). Although Porter did file his notice of appeal within 30 days of the denial of his motion for new trial, that motion was void because he did not file it within 30 days of the entry of the conviction and imposition of the sentence. Johnson v. State, 227 Ga. 219 (180 SE2d 94) (1971). Compare Harrison v. Harrison, 229 Ga. 692 (1) (194 SE2d 87) (1972) (prematurely filed motion for new trial).

To allow untimely filed motions, and thereby toll or delay the time for filing a notice of appeal, would violate the . . . provisions of [OCGA § 5-6-39 (b)], prohibiting extensions of time for filing such motions, as well as ignore the further[*499] mandate of [OCGA § 5-6-39 (d)], that requires within 30 days either the filing of a notice of appeal or the obtaining of an extension of time therefor.

Mayo v. State, 148 Ga. App. 213, 214 (251 SE2d 80) (1978). Thus, Porter’s void motion for new trial did not toll the 30-day limit within which he was required either to file a notice of appeal from the underlying judgment and sentence or to seek from the trial court an extension of time for doing so. Johnson v. State, supra; Williamson v. State ofGa., 182 Ga. App. 49 (354 SE2d 868) (1987). We cannot construe Porter’s untimely motion for new trial as an extraordinary motion for new trial, since it was unaccompanied by any attempt to show “some good reason . . . why the motion was not made during [the 30-day] period” following entry of the judgment and sentence. OCGA § 5-5-41 (a). See Jarrará v. Copeland, 205 Ga. App. 20, 21 (421 SE2d 84) (1992); Riggins v. State ofGa., 197 Ga. App. 612 (399 SE2d 96) (1990). Compare Gibbs v. State, 213 Ga. App. 117 (443 SE2d 708) (1994). Therefore, Porter has failed to invoke this Court’s jurisdiction and, lacking jurisdiction, we cannot address the merits of his enumerations of error.

[A]ttempts to provide sua sponte appellate review of criminal appeals notwithstanding incomplete appellate filings ... do a disservice to the courts, the criminal defendant, and appellate counsel. The practice requires the appellate court to ignore jurisdictional and procedural statutes and rules ....

Rowland v. State, supra at 874 (1).

It is immaterial that the untimely motion for new trial was filed by the attorney representing Porter, rather than by Porter acting pro se.

[T]he ineffectiveness of appellate counsel can result in the dismissal of an appeal of right without violating the defendant’s right to due process as long as the defendant’s due process right to an appeal is protected by provision of a “ ‘remedy for frustrated right of appeal.’ ” [Cit.]

Rowland v. State, supra at 875 (2). Since an out-of-time appeal is an available remedy where the loss of the right of conventional appellate review is due to defense counsel’s error, “we may dismiss an appeal of right for failure to follow appellate procedural prerequisites. [Cit.]” Rowland v. State, supra at 875 (2).

An out-of-time appeal is not authorized in every criminal case which involves a failure by counsel to comply with the applicable pro[*500] cedures necessary to invoke this Court’s jurisdiction. Such an appeal “is not authorized if the loss of the right to appeal is not attributable to ineffective assistance of counsel but to the fact that the defendant himself slept on his rights. [Cit.]” Cannon v. State, 175 Ga. App. 741, 742 (334 SE2d 342) (1985). Therefore, this Court cannot grant Porter an out-of-time appeal, since a hearing must be held to determine whether the untimeliness of this motion for new trial was attributable to Porter himself or to his then legal representative. To obtain an out-of-time appeal, Porter must apply for that relief in the trial court and establish “to [that] court’s satisfaction that the appellate procedural deficiency was due to appellate counsel’s failure to perform routine duties. . . .” Rowland v. State, supra at 876 (2). See also Cannon v. State, supra.

Decided September 20, 1999. Lynn M. Friedewald, for appellant. J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Daniel G. Ashburn, Assistant Attorney General, for appellee.

Accordingly, we dismiss this appeal and order that a copy of this opinion be sent to Porter’s present appellate counsel with direction to send a copy to Porter. If Porter subsequently seeks and obtains permission from the trial court to pursue an out-of-time appeal, he then will have 30 days within which to file his noticé of appeal to this Court. If the trial court denies an out-of-time appeal, Porter will have a 30-day period within which to file a notice of appeal to this Court.

Appeal dismissed.

All the Justices concur.