Court of Appeals

of the State of Georgia

ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A18A1099. RODERICK PRESTON v. THE STATE.

In an order dated May 9, 2018, this Court dismissed Roderick Preston’s appeal

for lack of jurisdiction. In that order, we determined that we lack jurisdiction to

consider his direct appeal from a trial court order dated September 15, 2015 denying

his motion for new trial because he did not file a notice of appeal within 30 days of

the entry of that order, as required by OCGA § 5-6-38 (a). We also determined that

we lack jurisdiction to consider an appeal from a June 7, 2017 Coweta County State

Court order denying Preston’ssecond motion for new trial because such motion must

be construed as an extraordinary motion for new trial under OCGA § 5-5-41 (b) and

because Preston had not complied with the discretionary appeal procedure set forth

in OCGA § 5-6-35 (a) (7). 

This Order does not affect our determination regarding our lack of jurisdiction

over Preston’s appeal from the trial court’s September 15, 2015 order. However,

because our prior order was premised on a misreading of the record before us, with

respect to Preston’s appeal from the June 7, 2017 Coweta County State Court order

denying his motion for new trial, Preston’s motion for reconsideration was granted.

As set forth more fully below, to the extent it relates to the June 7, 2017 Coweta

County State Court order denying his motion for new trial, we hereby again DISMISS

his appeal for lack of jurisdiction. 

Our May 9 order noted a representation made by Preston’s counsel that the

Coweta County Superior Court, on September 12, 2016, issued a consent order

granting in part Preston’s habeas corpus petition and this act reinstated the

July 30, 2018
proceedings as to Preston’s motion for new trial in Coweta County State Court.

However, in the May 9 order we stated that the record before us did not contain a

copy ofthe habeas order. On reconsideration, we note that a supplementalrecord filed

by the State on February 6, 2018 does contain the Coweta County Superior Court’s

September 12, 2016 habeas order. The habeas order remanded Preston’s case to the

Coweta County State Court and permitted Preston to pursue post-conviction

remedies. Preston did so, timely filing a pro se motion for new trial. Counsel was

appointed and argued Preston’s motion for new trial before the Coweta County State

Court. That motion was denied on June 7, 2017. Preston filed a pro se notice of

appeal on July 7, 2017. Preston’s counsel then filed a new notice of appeal on July

28, 2017, which referenced the pro se notice previously filed by Preston.

Pursuant to the Supreme Court’s decision in Ponder v. State, Preston had the

right to appeal to this Court from the State Court’s June 7, 2017 order via a direct

appeal rather than through the discretionary appeal procedure. See 260 Ga. 840, 842

(1) (1991). However, although Preston filed a pro se notice of appeal within the 30

days prescribed by OCGA § 5-6-38 (a), such filing was a legal nullity as the record

does not demonstrate that Preston was unrepresented when he made the pro se filing.

As this Court recently discussed in Soberanis v. State, where “the record does

notshow that his trial counsel had been formally permitted to withdraw . . . his notice

of appeal was a legal nullity[.]” 345 Ga. App. 403, 405 (812 SE2d 800) (2018). As

in Soberanis, there is nothing in the record or Preston’s briefs affirmatively

demonstrating that Preston’s counsel had withdrawn from representing him between

the entry of the June 7, 2017 order and the filing of his pro se appeal. As a result, his

pro se filing was a legal nullity. Id. Although appellate counsel later filed a notice of

appeal that attempted to relate back to his pro se filing, counsel’s filing cannot relate

back to a nullity. Thus, even though Preston had the right to pursue a direct appeal

from the June 7, 2017 order, pursuant to Soberanis, he did not timely file a notice of

appeal. We therefore lack jurisdiction over his appeal, which is hereby DISMISSED.

Preston is hereby informed of the following in accordance with Rowland v.

State, 264 Ga. 872 (452 SE2d 756) (1995). This appeal has been dismissed because
of your counsel’s failure to file a timely notice of appeal. If you still wish to appeal,

you may petition the trial court for leave to file an out-of-time appeal. If the trial

court enters an order granting your request, you will have 30 daysfrom the filing date

of that order to file a notice of appeal referencing your conviction. If the trial court

enters an order denying your request, you will have 30 days from the filing date of

that order to file a notice of appeal referencing the denial of your request for an outof-time appeal. The Clerk of Court is directed to send a copy of this order to Preston

as well asto Preston’s current attorney, who is also directed to send a copy to Preston.

Court of Appeals of the State of Georgia

Clerk’s Office, Atlanta,____________________

I certify that the above is a true extract from

the minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court

hereto affixed the day and year last above written.

, Clerk.

07/30/2018