Court of Appeals
of the State of Georgia

                                       ATLANTA,____________________
                                                July 30, 2018

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’s second 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
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 of the habeas order. On reconsideration, we note that a supplemental record 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
not show 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 days from 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 out-
of-time appeal. The Clerk of Court is directed to send a copy of this order to Preston
as well as to 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,____________________
                                                                      07/30/2018
                                                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.
