Bernard Moss v. State

• Court: Court of Appeals of Georgia
• Decided: August 23, 2017
• Docket: A18D0039
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ August 23, 2017

The Court of Appeals hereby passes the following order:

A18D0039. BERNARD MOSS v. THE STATE.

Bernard Moss was convicted of armed robbery, and we affirmed his conviction on appeal. Moss v. State, 333 Ga. App. XXVII (July 15, 2015) (unpublished). He later filed an extraordinary motion for new trial, which the trial court denied. Claiming that he did not receive timely notice of the order denying his extraordinary motion for new trial, Moss then filed a petition seeking various types of relief, including mandamus and an out-of-time appeal. On May 9, 2017, the trial court entered an “Order Denying Relief,” ruling that Moss had, in fact, received timely notice of the denial of his extraordinary motion for new trial. On June 16, 2017, Moss filed a “Notice of Appeal” in the Supreme Court. That Court docketed Moss’s filing as an application for discretionary appeal and transferred it here. See Case No. S17D1819 (transferred July 13, 2017). We, however, lack jurisdiction. A discretionary application must be filed within 30 days of entry of the judgment sought to be appealed. OCGA § 5-6-35 (d). The requirements of OCGA § 5-6-35 are jurisdictional, and this Court cannot accept an application for appeal not made in compliance therewith. Boyle v. State, 190 Ga. App. 734, 734 (380 SE2d 57) (1989); see also In the Interest of B. R. F., 338 Ga. App. 762, 762 (791 SE2d 859) (2016) (filing deadline for discretionary applications “is jurisdictional, and this court is unable to accept an untimely application”). Because Moss filed this application 38 days after entry of the judgment he seeks to appeal, it is untimely, and we lack jurisdiction to consider it. Accordingly, this application is hereby DISMISSED. The State’s motion to dismiss is MOOT.1 Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 08/23/2017 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.

1 The State seeks dismissal on the ground that Moss should have filed a discretionary application rather than a notice of appeal. As noted, however, the Supreme Court treated Moss’s filing as a discretionary application.