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GA Court of Appeals Addresses Out of Time Appeal Issue

March 31, 2014

In Kilgore v. State, the Georgia Court of Appeals affirmed the defendant’s drug conviction holding that the evidence was sufficient to support the conviction.

On November 11, 2011, a jury found the defendant guilty of possession of methamphetamine with intent to distribute. The trial court entered final judgment and imposed sentence on December 1, 2011. The defendant did not file a notice of appeal within 30 days of the final judgment. On January 23, 2012, his trial attorney filed an “Extraordinary Motion for New Trial” in which counsel alleged that he notified the public defender on December 8, 2011 that the defendant wished to appeal but could not afford private counsel. The Georgia Public Defender Standards Council did not contact the trial attorney to handle the appeal until the time limit to file a notice of appeal had expired. The motion requested that the trial court look into the situation, and also challenged the sufficiency of the evidence supporting the conviction. The trial court denied the motion and gave the defendant 30 days to file an appeal. He then appealed within the time allotted by the court.

As a threshold matter, the Court of Appeals considered whether the appeal was properly before them. Typically, a direct appeal from an extraordinary motion for new trial would not properly be before the Court since it would require an application for discretionary review. Even though the defense attorney titled his motion an extraordinary motion for new trial, the Court stated that it was technically a motion for leave to file an out of time appeal.

A motion for leave to file an out of time appeal is a remedy when a defendant’s right to appeal has been frustrated. Two situations where this arises is when a criminal defendant is not advised of his right to an appeal, or when his attorney is directed to file an appeal but fails to do so. The Court held that it was apparent that the trial court found that the defendant’s right to file an appeal had been frustrated because it gave him 30 additional days to file an appeal. As such, the Court of Appeals concluded that the appeal was properly before them.

The Court then ruled on the sufficiency of the evidence, which was the only alleged error. Viewed in the light most favorable to the verdict, the evidence showed that a drug task force set up a controlled buy using an informant. The defendant arrived at the arranged location, where the informant gave him $1,800 and asked for the drugs. The defendant said that they would have to drive to another location for the drugs. He drove away, but was stopped by police. Police found $1,800, digital scales, and a pill bottle with a crystal substance which tested positive for methamphetamine.

The Court noted that the sufficiency of the evidence could not be successfully challenged by mere inconsistencies or conflicts in the evidence. Discrepancies in the evidence or issues of witness credibility are “solely within the province of the jury.” Because the jury rationally could have found that the defendant possessed methamphetamine and intended to distribute it, the Court upheld the defendant’s conviction.

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