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Fulton v. State

Defendant's untimely motion for a new trial did not toll the time period for filing his notice of appeal.

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Frederick Lashun Fulton appeals from his convictions for malice murder and aggravated battery.1 Because Fulton’s notice of appeal was not timely filed, his appeal must be dismissed. The record shows that Fulton’s trial counsel failed to file a motion for new trial. Fulton’s first filing was an “amendment to motion for new trial,” which was filed by his appellate counsel almost three years after Fulton was sentenced. The trial court denied this motion, and Fulton appealed within 30 days. Because Fulton’s motion for new trial was untimely, so is his notice of appeal that followed. The time period for filing a notice of appeal is not tolled by an untimely motion for new trial.2

Fulton may seek an out-of-time appeal in the trial court.3 Pursuant to the procedure established in Rowland v. State and followed in Wicks v. State , a copy of this opinion shall be sent to Fulton and a copy shall be sent to his appellate counsel with direction to send a copy to Fulton. If Fulton subsequently seeks and obtains permission from the trial court to pursue an out-of-time appeal, he then will have 30 days within which to file his notice of appeal to this Court to commence the appeal of his convictions. If the trial court denies an out-of-time appeal, Fulton will have 30 days to file a notice of appeal to this Court to commence an appeal of the denial of his motion for out-of-time appeal.

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