Court of Appeals of the State of Georgia ATLANTA,__________________ May 16, 2013 The Court of Appeals hereby passes the following order: A13A1725. MICHAEL BENNING v. THE STATE.

Michael Benning was convicted of DUI and improper passing. By order entered December 21, 2012, the trial court denied his motion for new trial. On January 28, 2013, Benning filed a notice of appeal to this Court. We lack jurisdiction because the notice of appeal was not timely filed. OCGA § 5-6-38 (a) requires that a notice of appeal be filed within 30 days of entry of the order on appeal. The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon this Court. Couch v. United Paperworkers Intl. Union, 224 Ga. App. 721 (482 SE2d 704) (1997). Benning filed his notice of appeal 38 days after entry of the order he seeks to appeal. His appeal is therefore untimely, and it is hereby DISMISSED for lack of jurisdiction.

Because Benning is represented by counsel, he is informed of the following in accordance with Rowland v. State, 264 Ga. 872 (452 SE2d 756) (1995): This appeal has been dismissed because of your counsel’s failure to file a timely notice of appeal. If you still wish to appeal, you may request the trial court to grant an out-of-time appeal. If the trial court grants an out-of-time appeal, you will have 30 days from that grant in which to instigate an appeal. If the trial court denies your request for an out-of-time appeal, you may appeal that denial by filing a notice of appeal within 30 days of the denial. If you no longer wish to appeal your conviction, you need not do anything else.

The Clerk of Court is directed to send a copy of this order to Benning as well as to Benning’s attorney, who is also directed to send a copy to Benning.

Court of Appeals of the State of Georgia 05/16/2013 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.