Court of Appeals

of the State of Georgia

ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A21A0781. LEWIS HALLE, JR. v. THE STATE.

Following a bench trial, the superior court found Lewis Halle, Jr., guilty of

sexual battery and entered his sentence on March 14, 2018. In August 2018, the

superior court granted Halle’s motion for an out-of-time appeal. More than seven

months later, he filed an initial, counseled motion for a new trial, which he amended

nearly a year after that.

1 The superior court denied the motion on the merits in July

2020, and Halle filed a notice of appeal later that month. We dismissed the appeal on

grounds that, because Halle’s motion for a new trial was untimely, it did not toll the

time to file a notice of appeal, as a result of which his July 2020 notice of appeal was

untimely, asit wasfiled more than two years after hissentence was entered. See Halle

v. State, No. A21A0363 (Oct. 21, 2020); see also Pounds v. State, 309 Ga. 376, 378

(2) (b) n. 4 (846 SE2d 48) (2020) (an untimely motion for a new trial does not toll the

time to file a notice of appeal); Blackmon v. State, 306 Ga. 90, 91 n. 1 (829 SE2d 75)

(2019) (same); Hood v. State, 282 Ga. 462, 463-464 & n. 1 (651 SE2d 88) (2007) (to

be timely, a motion for a new trial filed after the grant of an out-of-time appeal must

be filed within 30 days of the order granting an out-of-time appeal).

1 For reasons that are unclear on the current record, Halle’s initial motion for

a new trial, filed in March 2019, was titled “Amended Motion for New Trial.”

August 12, 2021
Back in the superior court, Halle filed another motion for an out-of-time

appeal, which the court again granted. Halle then filed this timely direct appeal. We

lack jurisdiction.

A trial court order that denies (rather than dismisses) an untimely motion for

a new trial is invalid. Pounds, 309 Ga. at 385 (4). Consequently, the superior court’s

July 2020 denial of Halle’s untimely motion for a new trial is invalid. Nevertheless,

the superior court’s subsequent grant of an out-of-time appeal rendered Halle’s

initially untimely motion for a new trial ripe for review. See id.

Under OCGA § 5-6-34 (a) (1), appeals generally may be taken from “[a]ll final

judgments, that is to say, where the case is no longer pending in the court below.”

Halle’s instant notice of appeal – filed while his newly-ripened motion for a new trial

remains pending before the superior court – is premature. See Pounds, 309 Ga. at

381-382 (3), 385 (4); see also High v. State, 282 Ga. 244, 244 n. * (647 SE2d 270)

(2007). Accordingly, Halle was required to use the interlocutory appeal procedures

– including obtaining a certificate of immediate review fromthe trial court – to obtain

appellate review at this time. See OCGA § 5-6-34 (b); Hann v. State, 292 Ga. App.

719, 720 (1) (665 SE2d 731) (2008) (“A notice of appeal filed while a motion for new

trial is pending and unaccompanied by a proper certificate of immediate review does

not confer jurisdiction in the appellate courts.”); accord Pounds, 309 Ga. at 382 (3).

His failure to do so deprives us of jurisdiction over this direct appeal. Consequently,

this appeal is hereby DISMISSED, and the case is REMANDED for the superior

court to consider anew Halle’s motion for a new trial. See Pounds, 309 Ga. at 385 (4).

Should the superior court deny Halle’s motion for a new trial on remand, the

superior court clerk is DIRECTED to re-transmit the appeal to this Court and to

include a copy of this order in the record transmitted at that time. See Hann, 292 Ga.

App. at 720 (1) (a premature notice of appeal will ripen upon the filing of a trial court

order granting, overruling, or otherwise disposing of a motion for a new trial); accord

Pounds, 309 Ga. at 385 (4) n. 12. Halle need not file a second notice of appeal to
obtain appellate review at that time. See High, 282 Ga. at 244 n. *; Hann, 292 Ga.

App. at 720 (1).

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.

08/12/2021