Timing of Notice of Appeal when a Post-Judgment Motion Is Filed

The other day an attorney asked me a seemingly straightforward question: How does the filing of a new trial motion affect the timing of a notice of appeal? There’s a short and simple answer: the time for filing the notice of appeal doesn’t begin to run until the trial court rules on the motion for new trial. But as with many Georgia appellate procedure topics, there’s more to it than that.

Georgia Code Section 5-6-38(a) provides, “when a motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict has been filed, the notice [of appeal] shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.” This makes sense. Two courts can’t simultaneously consider the correctness of the same judgment. The appeal must wait until the trial court has had its chance to consider the new trial motion. Any other rule would waste judicial resources and create the possibility of conflicting outcomes.

But OCGA § 5-6-38(a) doesn’t cover every conceivable situation. What if months or years pass without the trial court ever ruling on the new trial motion? Can the movant give up, withdraw the motion, and seek review in the appeals courts instead? Not without help from the trial court. The Georgia Supreme Court considered this approach in Heard v. State, 274 Ga. 196 (552 SE2d 818) (2001). Heard was convicted in April 1996 and filed a timely new trial motion, but the trial court never ruled on it. Eventually Heard withdrew the motion and in July 1999 filed a notice of appeal. But the Supreme Court held the notice of appeal was not timely, because it was not within 30 days of an order as required by Section 5-6-38(a). Instead of withdrawing the motion on his own, the Court suggested, Heard should have obtained an order from the court dismissing or withdrawing the motion.

What if one party files a notice of appeal while the other party’s new trial motion is still pending? The trial court retains jurisdiction, and the appeals court will dismiss the appeal. See State v. Hood, No. S14A0763 (Ga. Sept. 22, 2014).

And what about post-judgment motions other than those listed in OCGA § 5-6-38(a)? Generally, they do not extend the time to file the notice of appeal. That means that a motion for reconsideration does not extend the period, which can create a dilemma if such a motion is still pending in the trial court when the notice of appeal deadline arrives.