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Ware v. State

The trial court lacked jurisdiction to rule on the defendant's motion for an out-of-time appeal because his pro se notice of appeal, which was never transmitted for appellate review, remained pending and acted as a supersedeas.

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Gregory Ware appeals, pro se, from the trial court’s order denying his motion for an out-of-time appeal. In related enumerations of error, he contends that the trial court erred by failing to inquire into whether his right to an out-of-time appeal was lost due to ineffective assistance of counsel, that his claims can be resolved by facts contained in the record, and that his plea counsel’s performance was deficient in failing to challenge the validity of the indictment. For the reasons explained below, we reverse and remand this case with direction.

The record shows that Ware pleaded guilty to kidnapping, aggravated assault, and terroristic threats, and his sentence was entered on August 9, 2004. On September 2, 2004, Ware filed a pro se notice of appeal in which he asserted ineffective assistance of counsel in the trial court and asked for an appointed appellate attorney because he was indigent. For reasons unknown, the Richmond County Superior Court Clerk’s office did not transmit the notice of appeal and record to this court.

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