Angelo Bernard Banks v. Brian Owens, Commissioner of the Georgia Department of Corrections

Court of Appeals of Georgia

Angelo Bernard Banks v. Brian Owens, Commissioner of the Georgia Department of Corrections

DecidedJanuary 8, 2015

DocketA15A0647

StatusPublished

This text of Angelo Bernard Banks v. Brian Owens, Commissioner of the Georgia Department of Corrections (Angelo Bernard Banks v. Brian Owens, Commissioner of the Georgia Department of Corrections) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Angelo Bernard Banks v. Brian Owens, Commissioner of the Georgia Department of Corrections, (Ga. Ct. App. 2015).

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Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 08, 2015

The Court of Appeals hereby passes the following order:

A15A0647. ANGELO BERNARD BANKS v. BRIAN OWENS, COMMISSIONER OF THE GEORGIA DEPARTMENT OF CORRECTIONS.

On November 12, 2013, we granted inmate Angelo Banks’s application for discretionary appeal from the trial court’s order dismissing his petition for declaratory judgment. In accordance with OCGA § 5-6-35 (g), Banks was given ten days in which to file a notice of appeal. In February 2014, Banks filed a motion in the trial court, seeking an extension of time to file his notice of appeal and attached documents showing that he attempted to mail his notice of appeal on November 20, 2013, by giving it to prison officials with a request for indigent postage. The notice of appeal was apparently never mailed. On July 14, 2014, the trial court granted Banks’s motion, and Banks filed his notice of appeal on August 7, 2014. We, however, lack jurisdiction. OCGA § 5-6-39 (a) provides that “[a]ny judge of the trial court or any justice or judge of the appellate court to which the appeal is to be taken may, in his discretion, and without motion or notice to the other party, grant extensions of time for the filing of . . . [a] [n]otice of appeal.” However, an application for extension of time must be made before the notice of appeal is due. See OCGA § 5-6-39 (d). Banks did not seek an extension before the notice of appeal was due. Even if he had, however, his notice of appeal was untimely. OCGA § 5-6-39 (c) provides “[o]nly one extension of time shall be granted for filing of a notice of appeal . . ., and the extension shall not exceed the time otherwise allowed for the filing of the notices initially.” Banks did not file his notice of appeal within ten days of the trial court’s order granting him an extension. “[A] timely-filed notice of appeal is a jurisdictional prerequisite to a valid appeal.” Henderson v. State, 265 Ga. 317 (1) (454 SE2d 458) (1995). Accordingly, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia 01/08/2015 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.

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Court of Appeals of the State of Georgia

ATLANTA,____________________ January 08, 2015

The Court of Appeals hereby passes the following order:

A15A0647. ANGELO BERNARD BANKS v. BRIAN OWENS, COMMISSIONER OF THE GEORGIA DEPARTMENT OF CORRECTIONS.

On November 12, 2013, we granted inmate Angelo Banks’s application for discretionary appeal from the trial court’s order dismissing his petition for declaratory judgment. In accordance with OCGA § 5-6-35 (g), Banks was given ten days in which to file a notice of appeal. In February 2014, Banks filed a motion in the trial court, seeking an extension of time to file his notice of appeal and attached documents showing that he attempted to mail his notice of appeal on November 20, 2013, by giving it to prison officials with a request for indigent postage. The notice of appeal was apparently never mailed. On July 14, 2014, the trial court granted Banks’s motion, and Banks filed his notice of appeal on August 7, 2014. We, however, lack jurisdiction. OCGA § 5-6-39 (a) provides that “[a]ny judge of the trial court or any justice or judge of the appellate court to which the appeal is to be taken may, in his discretion, and without motion or notice to the other party, grant extensions of time for the filing of . . . [a] [n]otice of appeal.” However, an application for extension of time must be made before the notice of appeal is due. See OCGA § 5-6-39 (d). Banks did not seek an extension before the notice of appeal was due. Even if he had, however, his notice of appeal was untimely. OCGA § 5-6-39 (c) provides “[o]nly one extension of time shall be granted for filing of a notice of appeal . . ., and the extension shall not exceed the time otherwise allowed for the filing of the notices initially.” Banks did not file his notice of appeal within ten days of the trial court’s order granting him an extension. “[A] timely-filed notice of appeal is a jurisdictional prerequisite to a valid appeal.” Henderson v. State, 265 Ga. 317 (1) (454 SE2d 458) (1995). Accordingly, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia 01/08/2015 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.

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Angelo Bernard Banks v. Brian Owens, Commissioner of the Georgia Department of Corrections, Counsel Stack Legal Research, https://law.counselstack.com/opinion/angelo-bernard-banks-v-brian-owens-commissioner-of-the-georgia-department-gactapp-2015.

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