dissenting.
On July 3, 1986, the trial court entered an order allowing the appeal in the sole basis that “the State does not oppose the Motion” and consents to the order. A notice of appeal was tendered by defense counsel when the motion for out-of-time appeal was filed.
Based on OCGA §§ 5-6-38 and 5-6-39, this court does not have jurisdiction and the appeal should be dismissed. A trial court has no jurisdiction to grant an extension of time for filing a notice of appeal where the application is not made before the expiration of 30 days. OCGA § 5-6-39 (d); Morris v. State, 115 Ga. App. 715 (155 SE2d 735) *480(1967). The consent by the state does not confer jurisdiction. Blackburn v. State, 169 Ga. App. 498 (314 SE2d 244) (1984).
Decided March 20, 1987 Rehearing Denied April 2, 1987 Thomas J. Hough, Jr., for appellant. Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.An out-of-time appeal must be granted by a habeas court as the appropriate remedy when the petitioner has been found to have suffered a constitutional deprivation of counsel. Webb v. State, 254 Ga. 130 (327 SE2d 224) (1985). It may also be granted directly, upon a proper determination by the criminal trial court. Cannon v. State, 175 Ga. App. 741 (334 SE2d 342) (1985). In the first instance, this is not a habeas case. In the second, there is no finding of deprivation by the lower court in the record before us.