Court of Appeals
of the State of Georgia

                                       ATLANTA,____________________
                                                May 23, 2018

The Court of Appeals hereby passes the following order:

A18A0483. JOHNNY MORGAN v. THE STATE.

      In 2010, Johnny Morgan was convicted of armed robbery and other crimes. He
filed a timely motion for new trial, which the trial court denied in 2013. Morgan
appealed, and the case was docketed in this Court as Case No. A15A2299. We
dismissed the appeal because Morgan’s counsel failed to file a brief and enumeration
of errors. Back in the trial court, Morgan filed an “Amendment to Motion for New
Trial” challenging his conviction on new grounds. The trial court denied that motion,
and Morgan appeals again. We, however, lack jurisdiction.
      A motion for new trial must be filed within 30 days of entry of the trial court’s
judgment. OCGA § 5-5-40 (a). The motion may be amended at any time “on or
before the ruling thereon.” OCGA § 5-5-40 (b). However, the motion may not be
amended after the trial court has ruled on it. See Arnold v. DeKalb County, 141 Ga.
App. 315, 316 (2) (233 SE2d 273) (1977). Here, Morgan filed his “Amendment to
Motion for New Trial” after the court had already denied his motion for new trial.
Thus, the “Amendment” was, in substance, a second motion for new trial. See
Rubiani v. State, 279 Ga. 299, 299 n.1 (612 SE2d 798) (2005) (the substance of a
motion, rather than its nomenclature, controls). And because this second motion for
new trial was filed more than 30 days after the judgment of conviction, we must treat
it as an extraordinary motion for new trial. See OCGA § 5-5-41 (b); Jeffcoat v. State,
299 Ga. App. 54, 54 (682 SE2d 131) (2009).
      An appeal from the denial of an extraordinary motion for new trial requires
compliance with the discretionary appeal procedure set forth in OCGA § 5-6-35. See
OCGA § 5-6-35 (a) (7); Balkcom v. State, 227 Ga. App. 327 (489 SE2d 129) (1997).
“The requirements of OCGA § 5-6-35 are jurisdictional, and this court cannot accept
an appeal not made in compliance therewith.” Boyle v. State, 190 Ga. App. 734, 734
(380 SE2d 57) (1989). Morgan’s failure to follow an application for discretionary
appeal deprives us of jurisdiction over this direct appeal, which is hereby
DISMISSED.
      We note that Morgan has been represented by counsel throughout his pursuit
of post-conviction relief. To the extent that Morgan’s right to appeal has been
frustrated by errors of counsel, he may be entitled to an out-of-time appeal. See
Rowland v. State, 264 Ga. 872 (452 SE2d 756) (1995). The clerk of court is directed
to send a copy of this order to Morgan as well as to Morgan’s current attorney, who
is also directed to send a copy to Morgan.

                                      Court of Appeals of the State of Georgia
                                             Clerk’s Office, Atlanta,____________________
                                                                       05/23/2018
                                             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.
