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Garcia v. State

The grant of the defendant's motion for an out-of-time appeal automatically entitled him to file his third motion for a new trial, despite the trial court's order denying the defendant's request for leave to file it.

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A Gwinnett County jury found Joe Mark Garcia guilty beyond a reasonable doubt of three counts of aggravated assault, OCGA § 16-5-21. Following the grant of his motion for out-of-time appeal, Garcia appeals, raising numerous grounds. For reasons explained below, however, this appeal is premature and is, accordingly, dismissed. The record shows the following proceedings. Garcia’s trial took place in June 2003. The trial court entered judgment on the jury’s guilty verdicts on September 2, 2003. Garcia’s trial counsel filed a timely motion for new trial “Garcia’s first motion for new trial” which, as amended, raised the general grounds and challenged the trial court’s ruling on Garcia’s Batson 1 motion. At a hearing on Garcia’s first motion for new trial, Garcia’s trial counsel expressed concern that he might have failed to preserve certain grounds for new trial or appeal. Because counsel was not permitted to argue his own ineffectiveness, the trial court suspended the hearing and appointed new counsel.

First appellate counsel did not file an amended motion for new trial. After a hearing, the trial court denied Garcia’s first motion for new trial as amended. First appellate counsel failed to file a timely notice of appeal.

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