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Keller v. State8/6/2001
appeal, may not be resurrected by extending the application of OCGA § 5-6-34 (d).
OCGA § 5-6-34 (d) provides that:
here an appeal is taken under any provision of subsection (a), (b), or (c) of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere.
That code section, however, does not allow revival of an untimely appeal of a final judgment. Keller may not "avoid the consequences of failing to file a timely direct appeal" simply by appealing from the order denying his motion to clarify sentence. " uch `bootstrapping' cannot vest this Court with jurisdiction to consider potential errors which could or should have been part of a direct appeal or timely motion for new trial." Consequently, case number A01A0927 must also be dismissed for failure to file a timely notice of appeal from the conviction.
In an attempt to escape this result, Keller characterizes the November 2000 order on his motion to clarify sentence as completing his sentence and thus argues that the time for appealing his conviction did not begin until the entire sentence was rendered. Keller's characterization misconstrues the record which clearly shows that during the sentencing hearing that occurred immediately after his trial, the court correctly determined that the maximum punishment for the open-container offense was a $200 fine,(V3 177) then announced it would not impose anything as to that offense.(V3 178) In accordance, the sentencing order shows no punishment for that violation, while it imposes punishments for all remaining convictions.(V1 138) Sentencing on Keller's conviction was complete at that time, and the 30-day period within which he was required to file a notice of appeal from the conviction commenced. In response to Keller's September 2000 "Motion to clarify and modify sentence" that asserted that the Board of Pardons and Paroles was withholding action on his case because "the court did not enter a sentence on [the open-container count],"(V1 217) the trial court responded by entering an "Order on defendant's motion to clarify sentence."(A01A0927 R 3) Contrary to Keller's contention that this order completed his sentence, then started the time for an appeal of conviction, the order merely clarified that the sentence was suspended and that Keller had received no punishment for his open-container violation, and did not have the effect of commencing a 30-day time limit for appealing his conviction.
Appeals dismissed. Smith, P. J., and Barnes, J., concur.
D.U.I., etc. Cobb Superior Court. Before Judge Stoddard.
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