Keller v. State8/6/2001
As amended December 10, 2001.
Gerald W. Keller appeals the trial court's denial of his motions for new trial and for sentence clarification and modification. Although Keller filed separate notices of appeal, we have consolidated the cases for review. Because Keller has failed to invoke this court's jurisdiction, we dismiss both appeals.
A grand jury indicted Keller for being an habitual violator, driving under the influence of alcohol, possession of an open container, violation of the Georgia Controlled Substances Act (VGCSA), improper equipment, speeding, no proof of insurance, and giving a false name. During a trial recess, Keller absconded. The court proceeded with the trial in his absence, after determining that his absence was voluntary. The jury found him not guilty of VGCSA and guilty of all other charges. On April 30, 1997, the court entered its judgment of conviction and imposed sentence. Having determined that Keller had "fled the jurisdiction of the Court," the court entered an order on May 19, 1997, permitting Keller's counsel to withdraw.
On June 23, 1997, Keller, proceeding pro se, filed a "motion to set aside judgment and convictions post conviction relief." On August 12, 1999, with new, post-conviction counsel, Keller filed a "request for out-of-time appeal," incorporating the grounds raised in the June 23, 1997, motion, none of which addressed his failure to file timely a notice of appeal. That same day, Keller filed a motion to modify sentence.
On April 19, 2000, a hearing was held on Keller's motions, during which the trial court noted that Keller had "remained a fugitive from this Court and a fugitive from justice during the trial and for an extended period of time after that." The court denied Keller's motion to modify sentence and permitted post-hearing briefs on the other motions. Keller, through counsel, filed a "memorandum in support of motion for new trial/motion for out-of-time appeal," although Keller had never filed a pleading entitled "motion for new trial." The memorandum did not address Keller's failure to file timely a notice of appeal. On June 15, 2000, the trial court denied the "motion for new trial/motion for out-of-time appeal." On July 12, 2000, Keller filed a notice of appeal from "the denial of a Motion for New Trial," which later was docketed in this court as Case Number A01A0926.
On September 22, 2000, Keller, through counsel, filed a motion to clarify and modify his sentence, pointing out that the trial court had not entered a sentence on the open-container offense and claiming that because of that omission the Board of Pardons and Paroles was withholding action on his case. He also complained of his one-year sentence for the no-proof-of-insurance offense, claiming that the evidence did not authorize such a penalty. On November 9, 2000, the trial court entered a "suspended sentence" for the open-container offense. On December 1, 2000, Keller filed a notice of appeal from that sentencing order, which was docketed in this court as Case Number A01A0927.
The State has moved to dismiss both appeals on jurisdictional grounds. This court must raise the question of its jurisdiction in all cases in which there is doubt whether jurisdiction exists. "The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court."
Case No. A01A0926.
1. Keller did not caption any of his pleadings as a motion for new trial. However, a review of the substance of his "motion to set aside judgment and convictions post conviction relief" shows it is actually a motion for new trial. But that motion, filed 54 days after his convicti
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