Court of Appeals of the State of Georgia ATLANTA,__________________ February 22, 2013 The Court of Appeals hereby passes the following order: A13A1007. PHILLIP L. FREEMAN v. THE STATE.

On August 11, 2011, Phillip Lamar Freeman was convicted of aggravated child molestation. Freeman timely moved for a new trial. He later voluntarily withdrew his motion for new trial and, on December 20, 2012, filed a notice of appeal.

We lack jurisdiction. A notice of appeal must be filed within 30 days of the judgment being appealed. See OCGA § 5-6-38 (a). The timely filing of a motion for new trial extends the running of this 30-day clock until the trial court disposes of the motion. Id. Absent a court order resolving the motion, however, the appeal time is not extended. As our Supreme Court has ruled, “OCGA § 5-6-38 requires a trial court order granting, denying, or otherwise finally disposing of a party’s motion for new trial in order to extend the time for filing a notice of appeal.” Heard v. State, 274 Ga. 196, 197 (1) (552 SE2d 818) (2001). A unilaterally withdrawn motion for new trial, standing alone, does not toll the appeal time. Id. In this case, Freeman voluntarily withdrew his motion for new trial. The trial court neither ruled on the motion nor granted Freeman permission to withdraw it.

The time for filing his direct appeal, therefore, was not extended, and his notice of appeal was untimely because it was filed more than 30 days after his conviction. Id. See Simmons v. State, 276 Ga. 525 n.1 (579 SE2d 735) (2003) (“A defendant’s withdrawal of his motion for new trial, without more, does not extend the time within which a timely notice of appeal may be filed and, if a notice of appeal is not filed within 30 days of the judgment of conviction, results in the loss of the right to a direct appeal.”) Accordingly, we cannot consider Freeman’s appeal, which is hereby DISMISSED.

We note, however, that Freeman may be entitled to pursue an out-of-time appeal. He is therefore informed of the following in accordance with Rowland v. State, 264 Ga. 872 (452 SE2d 756) (1995): This appeal has been dismissed because your counsel failed to file a timely notice of appeal. If you still wish to appeal, you may petition the trial court for leave to file an out-of-time appeal. If the trial court grants your request, you will have 30 days from the entry of that order to file a notice of appeal referencing your conviction. If the trial court denies your request, you will have 30 days from the entry of that order to file a notice of appeal referencing the denial of your request for an out-of-time appeal.

The Clerk of Court is directed to send a copy of this order to Freeman and Freeman’s attorney, and the latter is also directed to send a copy to Freeman.

Court of Appeals of the State of Georgia 02/22/2013 Clerk’s Office, Atlanta,__________________ 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.