Hardrick v. Morgan

522 S.E.2d 742 (1999)

240 Ga. App. 155

HARDRICK v. MORGAN.

No. A00A0219.

Court of Appeals of Georgia.

September 24, 1999.

*743 Michael A. Gabel, Decatur, for appellant.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, John C. Jones, Senior Assistant Attorney General, for appellee.

McMURRAY, Presiding Judge.

David Hardrick was convicted and sentenced upon an indictment for aggravated assault that "was so fundamentally flawed," the Supreme Court of Georgia affirmed the grant of habeas corpus, ordering Hardrick's release from prison. Smith v. Hardrick, 266 Ga. 54, 464 S.E.2d 198. Hardrick subsequently sued the District Attorney for DeKalb County, J. Tom Morgan, alleging a constitutional tort, but in an order entered June 14, 1998, the superior court granted Morgan's motion to dismiss. Hardrick's motion for reconsideration of that June 14 order was denied on July 20, 1998, and on August 16, 1998, Hardrick filed a notice of appeal. Held:

"A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of." OCGA § 5-6-38(a). The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court. Barnes v. Justis, 223 Ga.App. 671, 672, 478 S.E.2d 402. A motion for reconsideration does not extend the time for filing a notice of appeal. Rockdale County v. Water Rights Committee, 189 Ga.App. 873, 874, 377 S.E.2d 730. We are without jurisdiction to consider the instant appeal because a notice of appeal filed on August 16, 1998, from an order of dismissal entered June 14, 1998, is not timely. The appeal in Case No. A00A0219 must be dismissed.

Appeal dismissed.

JOHNSON, C.J., and PHIPPS, J., concur.