Court of Appeals of the State of Georgia

ATLANTA,____________________ July 16, 2024

The Court of Appeals hereby passes the following order:

A24A1652. ALEX JAY YUN v. THE STATE.

Following a jury trial, Alex Jay Yun was found guilty of aggravated stalking. The trial court entered the judgment of conviction and sentence on August 6, 2021. Yun filed an “Out of Time Motion for New Trial” on September 13, 2021, and he later filed an amended motion for new trial. On March 26, 2024, the trial court denied the motion for new trial, and Yun filed a notice of appeal on April 8, 2024. We, however, lack jurisdiction. “[T]he proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” Davis v. State, 330 Ga. App. 711, 711 (769 SE2d 133) (2015) (citation, punctuation, and emphasis omitted). Generally, a notice of appeal must be filed “within 30 days after entry of the appealable decision or judgment complained of.” OCGA § 5-6-38 (a). A timely filed motion for new trial may extend the time in which to seek appellate review. However, “a late-filed motion for new trial cannot toll the time for filing a notice of appeal under OCGA § 5-6-38 (a).” Pounds v. State, 309 Ga. 376, 378 n.4 (846 SE2d 48) (2020), overruled in part on other grounds by Johnson v. State, 315 Ga. 876, 889 (3) n.11 (885 SE2d 725) (2023); see also Blackmon v. State, 306 Ga. 90, 91 n.1 (829 SE2d 75) (2019) (“[T]he time period for filing a notice of appeal is not tolled by an untimely motion for new trial.”). To be timely, a motion for new trial must be filed within 30 days of a judgment of conviction. OCGA § 5-5-40 (a). Here, Yun’s motion for new trial was filed 38 days after entry of the judgment of conviction and sentence and was thus not timely. See id. As such, it did not extend

the time for Yun to file a notice of appeal.1 See Pounds, 309 Ga. at 378 n.4. Accordingly, Yun’s notice of appeal, filed more than two years after the judgment of conviction was entered, is untimely. This case is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 07/16/2024 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.

1 In a scheduling order, the trial court noted that the State consented to Yun’s out of time motion for new trial. However, under Georgia law, parties cannot confer jurisdiction by consent. See OCGA § 15-1-2; Davis, 330 Ga. App. at 715.