Vieyra v. State
Decision Date | 08 January 2020 |
Docket Number | A19A2050 |
Citation | 353 Ga.App. 402,837 S.E.2d 715 |
Court | Georgia Court of Appeals |
Parties | VIEYRA v. The STATE. |
Jesus Vieyra, pro se.
Herbert McIntosh Poston Jr., District Attorney, Christina Marie Antalis, Assistant District Attorney, for Appellee.
Jesus Vieyra, who is proceeding pro se, appeals the dismissal of a notice of appeal and the denial of his motion for out-of-time appeal. We hold that the trial court lacked authority to dismiss the notice of appeal but did not err in denying the motion for out-of-time appeal. So we vacate in part and affirm in part.
Vieyra was indicted on multiple charges, including the rape of his former wife. Vieyra entered a guilty plea to home invasion and two counts of family violence aggravated assault, and the trial court entered a judgment of conviction on that guilty plea on October 11, 2016. The court sentenced Vieyra to 40 years, 20 years to be served in confinement and 20 years to be served on probation. The court imposed sex offender supervision as a special condition of probation, including the requirement that Vieyra register as a sex offender.
On December 20, 2018, Vieyra filed a motion for out-of-time appeal, which the trial court denied the next day. We dismissed Vieyra's appeal from that order because his notice of appeal was untimely.
Vieyra filed a second motion for out-of-time appeal on February 22, 2019, which the trial court denied on March 13, 2019. Apparently Vieyra filed a notice of appeal from that order, although the notice of appeal is not included in the appellate record. On March 20, 2019, the trial court dismissed Vieyra's notice of appeal from the March 13 order.
Vieyra filed a timely application for discretionary appeal of both the March 13 order denying his motion for out-of-time appeal and the March 20 order dismissing his notice of appeal. We granted the application under OCGA § 5-6-35 (j) because the orders Vieyra sought to appeal were subject to direct appeal. His appeal is before us now.
We first address the trial court's order dismissing Vieyra's notice of appeal. The trial court dismissed the notice of appeal on the ground that Vieyra had "nothing cognizable to appeal." In this the trial court erred because "Georgia law generally reserves to the appellate courts the authority to dismiss appeals." Jones v. Peach Trader Inc ., 302 Ga. 504, 506 (II), 807 S.E.2d 840 (2017) ( ). So we vacate the order dismissing Vieyra's notice of appeal, and that notice of appeal challenging the March 13 order denying his motion for out-of-time appeal is now before us. Id , at 511 (II), 807 S.E.2d 840.
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