Kilgore v. State, A13A1954.

• Decision Date: 03 March 2014
• Docket Number: No. A13A1954.,A13A1954.
• Citation: 756 S.E.2d 9,325 Ga.App. 874
• Court: Georgia Court of Appeals
• Parties: KILGORE v. The STATE.

325 Ga.App. 874

756 S.E.2d 9

KILGORE

v.The STATE.

No. A13A1954.

Court of Appeals of Georgia.

March 3, 2014.

Roger L. Curry, for Appellant.

Shannon G. Wallace, Dist. Atty., Jana Willingham Allen, Asst. Dist. Atty., for Appellee.

McFADDEN, Judge.

After a jury trial, James Kilgore was convicted of possession of methamphetamine with intent to distribute. He appeals, challenging the sufficiency of the evidence. Because there is enough evidence from which a rational trier of fact could have found Kilgore guilty beyond a reasonable doubt, we affirm.

1. Jurisdiction.

“It is the duty of this [c]ourt in all instances to inquire into our jurisdiction.” Segura v. State, 280 Ga.App. 685, 686(1), 634 S.E.2d 858 (2006) (footnote omitted). In that regard, the record shows that the jury returned its guilty verdict on November 1, 2011, and the trial court imposed sentence and entered final judgment of conviction on December 1, 2011. Kilgore did not move for a new trial or file a notice of appeal within 30 days of the final judgment. Rather, on January 23, 2012, his trial attorney filed a document entitled “Extraordinary Motion for New Trial.” In that filing, counsel alleged that on December 8, 2011, he had sent a letter to the circuit public defender indicating that Kilgore wished to appeal his conviction but could not afford to hire private counsel, and that the Georgia Public Defender Standards Council did not subsequently contact and ask counsel to handle Kilgore's appeal until more than 30 days after entry of the final judgment. The extraordinary motion requested that the trial court inquire into the basis for the need to file the extraordinary motion, and also challenged the sufficiency of the evidence supporting the verdict. On April 24, 2013, the trial court entered an order denying the motion on the basis that there was sufficient evidence to support the jury's verdict, and also granting Kilgore 30 days to file an appeal. Kilgore timely filed a direct appeal from that order.

To the extent Kilgore is deemed to have directly appealed from the denial of an extraordinary motion for new trial, such an appeal would not be properly before us because a party must file an application for discretionary appeal from such an order. See OCGA § 5–6–35(a)(7); Balkcom v. State, 227 Ga.App. 327, 329, 489 S.E.2d 129 (1997). However, “our jurisdictional review is [also] guided by the principle that courts are not bound by the designation given motions by the parties and that we look to substance over nomenclature.” Miller v. State, 264 Ga.App. 801, 803(b), 592 S.E.2d 450 (2003) (citation and punctuation omitted). Here, even though Kilgore designated his filing as an extraordinary motion for new trial, in substance it was a motion for leave to file an out-of-time appeal based on allegations that even though he had expressed his desire to appeal his conviction and could not afford an attorney, appellate counsel was not appointed to represent him until after expiration of the 30–day period for filing an appeal.

“An out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal.” Simmons v. State, 276 Ga. 525, 526, 579 S.E.2d 735 (2003) (citation and punctuation omitted). “The disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal.” Glass v. State, 248 Ga.App. 91, 92(1), 545 S.E.2d 360 (2001) (citations omitted). “The out-of-time appeal is granted where the deficiency involves not the trial but the denial of the right of appeal.” Rowland v. State, 264 Ga. 872, 875(2), 452 S.E.2d 756 (1995) (citations and punctuation omitted). Thus, an out-of-time appeal may be granted where a defendant in a criminal case is not advised of his right of appeal or his counsel fails to appeal as directed. Tyner v. State, 289 Ga. 592, 593(1), 714 S.E.2d 577 (2011); Birt v. Hopper, 245 Ga. 221, 221–222, n. 1, 265 S.E.2d 276 (1980). Under the circumstances here, it is apparent that the trial court found that Kilgore's right to appeal was frustrated and thus the trial court granted him 30 days to file an out-of-time appeal. Kilgore timely filed his notice of appeal, and thus the appeal is properly before us.

2. Sufficiency of the evidence.

In his sole enumeration of error, Kilgore claims that there is insufficient evidence to support the verdict. The claim is without merit.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the...