Kelly v. Georgia
Annotate this CaseAppellant Paula Kelly was convicted of murder and other crimes in 2015. Through new counsel, Kelly filed a motion for new trial, which was denied in an order entered on September 11, 2018. On October 15, 2018, Kelly filed a notice of appeal. Because the notice of appeal was filed more than 30 days after the denial of the motion for new trial, the Georgia Supreme Court dismissed the appeal as untimely. In the dismissal order, the Supreme Court advised Kelly of her right to seek an out-of-time appeal and stated that, if an out-of-time appeal were granted, “appellant will have 30 days from the grant within which to file a notice of appeal.” Kelly thereafter sought an out-of-time appeal, and a trial court granted the motion on March 22, 2019. The court’s order incorrectly stated that “[Kelly’s] counsel did not file a timely motion for new trial” and advised Kelly that she could “file a motion for new trial or notice of appeal within 30 days from the date of this Order.” Kelly then filed a second motion for new trial on Monday, April 22, 2019. In this second motion for new trial, in which Kelly was represented by the same counsel as in her initial motion, Kelly asserted substantially similar claims as those previously raised and rejected. The second motion was denied on September 13, 2019. The issue this appeal presented for the Supreme Court's review was whether, when a trial court has denied a criminal defendant’s motion for new trial and the defendant subsequently seeks and was granted an out-of-time appeal, the defendant was authorized to file a second motion for new trial to raise claims other than those alleging the ineffective assistance of trial counsel that could not have been raised in the initial motion. The Court concluded that a defendant was not authorized to do so. For this reason, this appeal was untimely and had to be dismissed.
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