☢ test - Í

295 Ga. 657, 763 S.E.2d 461 (September 22, 2014) (defendant alleged ineffective assistance in case investigation and entry of guilty plea, but not in failure to timely file appeal). Whitfield v. State, 313 Ga.App. 297, 721 S.E.2d 211 (December 14, 2011). In DUI prosecution, denial of defendant’s motion for out-of-time appeal vacated and remanded. Defendant contended that the order denying his motion for new trial was sent to the wrong address; in denying the motion for new trial, trial court found “that it had notified Whitfield using the ‘current address on file with this Court.’” “Here, the judge refused to grant Whitfield's motion for an out-of-time appeal, but did not find that Whitfield had received notice. Moreover, the record shows that, as support for his motion, [fn] Whitfield attached thereto a copy of the face of an envelope, which he claimed evidenced that the trial court had mailed the order to the wrong address. … [T]he recipient's address provided on the envelope was not the address shown for Whitfield on other documents in the record.” “Under these circumstances, we can not discern from the language used in the order denying Whitfield's motion for an out-of-time appeal — that the trial judge had notified Whitfield using the ‘current address on file with this Court’ — a finding of compliance with OCGA § 15–6–21(c) or that notice was (timely) received. See generally Kendall v. Peach State Machinery, 215 Ga.App. 633, 634–635(2) (451 S.E.2d 810) (1994) (language employed by trial court, coupled with lack of finding regarding compliance with OCGA § 15–6–21(c), made uncertain whether trial court's decision was proper under Cambron [ v. Canal Ins. Co., 246 Ga. 147 (269 S.E.2d 426) (1980)].) (physical precedent only).” Jackson v. State, 313 Ga.App. 483, 722 S.E.2d 80 (December 8, 2011). Trial court properly denied defendant’s motion for out-of-time appeal; late filing of notice was due to defendant’s own failure to put adequate postage on mail sent from jail. “To the extent Jackson argued that the ‘mailbox’ rule enunciated in Massaline v. Williams, 274 Ga. 552, 554 (554 S.E.2d 720) (2001), applied to render his notice of appeal as having been timely filed when he delivered it to the prison mailroom, his argument is unavailing. ‘The “mailbox” rule ... applies only in the context of habeas corpus proceedings. Riley v. State, 280 Ga. 267, 268 (626 S.E.2d 116) (2006).’ (Punctuation omitted.) Lewis v. State, 300 Ga.App. 586, 587 (685 S.E.2d 485) (2009). The rule ‘does not exempt a pro se prisoner from complying with the statutory requirements to file a timely notice of appeal in any non-habeas criminal or civil filing.’ (Citation omitted.) McCroskey v. State, 291 Ga.App. 15, 16(2) (660 S.E.2d 735) (2008).” Gable v. State, 290 Ga. 81, 720 S.E.2d 170 (November 17, 2011). “We granted certiorari in this case to consider whether a trial court has the authority to grant an out-of-time discretionary appeal in a criminal case as a remedy for counsel's failure to timely file a discretionary application. We conclude that Georgia courts do not have such authority where, as here, that remedy is not required by a violation of the appellant's constitutional rights.” No such constitutional violation here, as defendant had already had direct appeal on his convictions for rape, child molestation, and related offenses. Defendant then “filed a pro se extraordinary motion for new trial under OCGA § 5–5– 41 based on the alleged recantation of one of the victims.” A public defender was appointed; the motion was denied; the public defender attempted to file a direct appeal; and the Court of Appeals dismissed the direct appeal, as appeal from denial of an extraordinary motion for new trial requires discretionary appeal under OCGA § 5–6–35. Trial court then erroneously granted a motion for out-of-time discretionary appeal. Held, Court of Appeals correctly “ruled that the trial court did not have the authority to grant an out-of-time discretionary application and dismissed Appellant's application.” Failure to timely file for discretionary appeal is a “jurisdictional defect.” “That holding is consistent with this Court's cases holding that compliance with the 30–day time limit for filing a notice of appeal under OCGA § 5–6–38(a) is an ‘absolute requirement’ to confer jurisdiction on an appellate court. See, e.g., Cody v. State, 277 Ga. 553, 553 (592 S.E.2d 419) (2004); Gulledge v. State, 276 Ga. 740, 741 (583 S.E.2d 862) (2003); Rowland v. State, 264 Ga. 872, 872 (452 S.E.2d 756) (1995).” Contrary to defendant’s argument, the courts have no “inherent, equitable power to excuse the late filing of a discretionary appeal.” “Instead, Georgia courts may excuse compliance with a statutory requirement for appeal only where necessary to avoid or remedy a constitutional violation concerning the appeal.” Such a problem exists, for instance, where ineffective assistance of counsel interferes with defendant’s direct appeal, since a criminal defendant has the constitutional right to counsel on a first, direct appeal; but “[t]here is no constitutional right to counsel, much less the effective assistance of counsel, in filing or litigating a post-conviction extraordinary motion for new trial or a discretionary application to appeal the ruling on such a motion. See Murrell v. Young, 285 Ga. 182, 183 (674 S.E.2d 890) (2009) (holding that a defendant has no constitutional right to counsel to pursue a post-conviction extraordinary motion for new trial); … Gibson v. Turpin, 270 Ga. 855, 859–860 (513 S.E.2d 186) (1999) (holding that a defendant has a right to counsel at trial and on direct appeal of right ‘but no further’). See also Ross v. Moffitt, 417 U.S. 600, 609–618 (94 S.Ct. 2437, 41 L.Ed.2d 341) (1974) (holding that, following a direct appeal of right, a criminal defendant has no constitutional right to counsel to pursue further discretionary state appeals or applications for review by the United States Supreme Court); Coleman v. Thompson, 501 U.S. 722, 753–754 (111 S.Ct. 2546, 115 L.Ed.2d 640) (1991) (explaining