E. Marcellus Windhom v. State
Docket A26A1534
Court of record · Indexed in NoticeRegistry archive · AI-enriched for research
- Filed
- Jurisdiction
- Georgia
- Court
- Court of Appeals of Georgia
- Type
- Opinion
- Case type
- Criminal Appeal
- Disposition
- Dismissed
- Docket
- A26A1534
Appeal from the trial court's order dismissing a motion for leave to file an out-of-time motion for new trial
Summary
The Court of Appeals dismissed an appeal by E. Marcellus Windhom challenging the trial court’s November 19, 2025 order that dismissed his motion for leave to file an out-of-time motion for new trial. Windhom filed his notice of appeal on February 12, 2026, 85 days after the order, but Georgia law requires a notice of appeal within 30 days. Because timely filing of a notice of appeal is a jurisdictional requirement, the Court concluded it lacked jurisdiction and dismissed the appeal.
Issues Decided
- Whether the Court of Appeals has jurisdiction to hear an appeal filed 85 days after entry of a trial court order when Georgia law requires a notice of appeal within 30 days
- Whether the trial court’s order dismissing a motion for leave to file an out-of-time motion for new trial is appealable (not decided because jurisdictional defect disposed of the case)
Court's Reasoning
Under OCGA § 5-6-38(a), a notice of appeal must be filed within 30 days of the entry of the judgment or order to confer appellate jurisdiction. The court treated timely filing as an absolute jurisdictional requirement and relied on precedent emphasizing that requirement. Because Windhom’s notice was filed 85 days after the order, the Court lacked jurisdiction and dismissed the appeal without reaching the merits of whether the order was directly appealable.
Authorities Cited
- OCGA § 5-6-38(a)
- Perry v. Paul Hastings, LLP362 Ga. App. 140 (866 SE2d 855) (2021)
Parties
- Appellant
- E. Marcellus Windhom
- Appellee
- The State
- Court
- Court of Appeals of the State of Georgia
- Judge
- Clerk
Key Dates
- Original appellate decision affirming conviction
- 2014-01-01
- Motion for leave filed
- 2025-09-01
- Trial court order dismissing motion
- 2025-11-19
- Notice of appeal filed
- 2026-02-12
- Court of Appeals order dismissing appeal
- 2026-04-02
What You Should Do Next
- 1
Consult criminal appellate counsel
Talk to an experienced appellate attorney promptly to evaluate whether any trial-court remedies or extraordinary petitions remain available to challenge the dismissal or to seek relief from the timeliness issue.
- 2
Explore trial-court remedies
Consider filing a motion in the trial court asking for relief from the order (such as relief based on excusable neglect or other equitable grounds) if factual grounds exist to justify late relief.
- 3
Preserve records and deadlines
Gather and preserve the record, filings, and any evidence about why the notice was late, and be prepared to act quickly on any possible procedural avenue since timing and procedural accuracy are critical.
Frequently Asked Questions
- What did the court decide?
- The Court of Appeals dismissed Windhom’s appeal because his notice of appeal was filed 85 days after the trial court’s order, exceeding the 30-day deadline required by law.
- Who is affected by this decision?
- E. Marcellus Windhom is directly affected because his appeal of the trial court’s dismissal of his motion for leave to file an out-of-time new trial motion was dismissed for being late.
- What happens next?
- Because the appeal was dismissed for lack of jurisdiction, the trial court’s November 19, 2025 order stands unless Windhom can pursue other extraordinary relief in the trial court or obtain permission to file a late appeal through some other available procedure.
- Can this decision be appealed further?
- Options are limited: dismissal for lack of jurisdiction is generally final, but Windhom might seek relief in the trial court (e.g., reopening or equitable relief) or consult counsel about any narrow avenues for reinstatement; timely appeal deadlines are strictly enforced.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
Court of Appeals
of the State of Georgia
ATLANTA,____________________
April 02, 2026
The Court of Appeals hereby passes the following order:
A26A1534. E. MARCELLUS WINDHOM v. THE STATE.
E. Marcellus Windhom was convicted of armed robbery, and this Court
affirmed his conviction on appeal. Windhom v. State, 326 Ga. App. 212 (756 SE2d 296)
(2014). In September 2025, Windhom filed a motion for leave to file an out-of-time
motion for new trial. On November 19, 2025, the trial court issued an order dismissing
the motion. On February 12, 2026, Windhom filed a notice of appeal. We lack
jurisdiction because, pretermitting whether the trial court’s order is directly
appealable, the appeal is untimely. A notice of appeal must be filed within 30 days of
entry of the judgment or trial court order sought to be appealed, OCGA § 5-6-38(a),
and the proper and timely filing of a notice of appeal is an absolute requirement to
confer jurisdiction upon this Court. Perry v. Paul Hastings, LLP, 362 Ga. App. 140, 141
(866 SE2d 855) (2021). Because the instant appeal was filed 85 days after entry of the
trial court’s order, it is untimely and is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
04/02/2026
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.