Luke v. State

Orlando Valentino Luke was convicted in 1994 of speeding, driving on the wrong side of the road, reckless driving, cocaine possession, possession of a firearm by a convicted felon, possession of a firearm during the commission of a crime, driving under the influence, aggravated assault and two counts of simple assault. In this out-of-time appeal, Luke states that he is appealing from the sentences, convictions and denial of his motion for new trial. This is the second appearance of this case before this Court. Luke filed an earlier appeal after the trial court entered an order in March 2009 ostensibly denying a motion for new trial dated April 22, 1994. But no such motion appeared in the appellate record; rather, the only motion for new trial in the record was dated January 12, 2009, almost 15 years after Luke’s conviction. This Court determined that it lacked jurisdiction over the appeal because the January 2009 motion for new trial was untimely and therefore void. See Wright v. Rhodes , 198 Ga. App. 269 401 SE2d 35 1990; OCGA § 5-5-40 a. Accordingly, the Court dismissed the appeal. Luke subsequently moved the trial court for an out-of-time appeal, which the trial court granted.1

Luke’s sole argument on appeal is that the trial court erred in failing to charge the jury sua sponte on his “sole defense” of justification and that this error requires the reversal of his convictions for possession of a firearm during the commission of a crime, speeding, driving on the wrong side of the road, reckless driving and possession of a firearm by a convicted felon.2 We disagree.