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Davis v. State

The Court of Appeals erred in failing to dismiss the defendant's untimely appeal of the denial of his amended motion for a new trial.

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We granted pro se prisoner Norman Davis’s petition for writ of certiorari to address procedural and substantive issues raised by Divisions 1 and 2 of Davis v. State , 273 Ga. App. 397 615 SE2d 203 2005. However, our review of the appeal establishes that although the trial court denied Davis’s amended motion for new trial in an order filed October 19, 2004, so that the notice of appeal to be timely had to be filed no later than November 18, 2004, see OCGA § 5-6-38 a notice of appeal shall be filed within 30 days after entry of order on motion for new trial, Davis’s notice of appeal was not received and filed until November 22, 2004, four days late. The record fails to reflect that Davis sought or was granted an extension of time in which to file the notice of appeal, see OCGA § 5-6-39 a 1, nor did he seek or receive permission to file an out-of-time appeal. See Gulledge v. State , 276 Ga. 740 583 SE2d 862 2003. There being no order granting an extension or permitting an out-of-time appeal and no timely-filed notice of appeal, the Court of Appeals erred when it failed to dismiss the appeal. See generally Gulledge , Cody , supra. Accordingly, we reverse the Court of Appeals with direction that it dismiss the appeal. Judgment reversed with direction . All the Justices concur .

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