James Porter, Jr., was convicted of theft by taking and was sentenced as a recidivist to serve 10 years. Porter appeals pursuant to the trial court’s grant of an out-of-time appeal, arguing that the state failed to prove that the value of the items taken exceeded $500. We agree. Therefore, we vacate Porter’s sentence and remand the case with direction that sentencing be imposed for misdemeanor theft by taking. 1. We first address the state’s contention that the trial court lacked jurisdiction to grant Porter’s motion for an out-of-time appeal. In this regard, the record shows that we dismissed Porter’s initial appeal on May 13, 2010, because he failed to file a brief or enumerations of error. Porter filed a motion for an out-of-time appeal on June 14, 2010, and the trial court granted the motion two days later. This Court issued the remittitur to the trial court on June 28, 2010, and the remittitur was filed in the office of its clerk on July 1. Porter filed a petition for certiorari on June 27, which the Supreme Court of Georgia denied on October 18, 2010.1 The state contends that the pendency of the appeal in the Supreme Court deprived the trial court of jurisdiction to issue the order granting an out-of-time appeal.2 We disagree.
First, we point out that the effective date herein was July 1, when the remittitur from this Court was filed in the clerk’s office of the trial court. At that point, the trial court was reinvested with jurisdiction over the case.3 Although the trial court issued its order before receiving the remittitur, not every action by a trial court is barred during the pendency of an appeal.4 Rather, the trial court cannot execute sentence or entertain “proceedings which either require a ruling on the matters on appeal or directly or indirectly affect such matters.”5 Technically, there was no matter on appeal before this Court, because we dismissed the appeal pursuant to Court of Appeals Rule 23 a for failure to file a brief or enumerations of error. The basis for the grant of an out-of-time appeal —the right to effective assistance of counsel on appeal from a criminal conviction6 —was not under consideration. Therefore, we hold that the trial court was not deprived of jurisdiction to grant Porter’s motion.
