Bonifacio Cruz v. State

• Court: Court of Appeals of Georgia
• Decided: February 11, 2019
• Docket: A19A1269
• Status: Published

Opinion

Court of Appeals of the State of Georgia

February 11, 2019 ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A19A1269. BONIFACIO CRUZ v. THE STATE.

In 2005, Bonifacio Cruz pleaded guilty to methamphetamine trafficking and was sentenced as a first offender to probation. In 2017, the State filed a petition to revoke Cruz’s probation. Cruz admitted the allegations in the petition, and the trial court revoked his probation on March 28, 2018. On October 1, 2018, proceeding pro se, Cruz filed a “motion to withdraw plea,” seeking to withdraw his “plea” entered on March 28, 2018 and raising various challenges to the revocation. The trial court found that Cruz had entered no plea that could be withdrawn and instead construed Cruz’s filing as a motion for an out-of-time appeal, which it denied. Cruz then filed this direct appeal.1 We lack jurisdiction. The denial of a motion for an out-of-time appeal is ordinarily directly appealable when the criminal conviction at issue has not been the subject of direct appeal. See English v. State, 307 Ga. App. 544, 545 n.4 (705 SE2d 667) (2010). However, the underlying subject matter of the appeal determines whether an application for appeal is required. See Avren v. Garten, 289 Ga. 186, 192 (7) (710 SE2d 130) (2011). Here, because the underlying subject matter of this appeal concerns the revocation of probation, Cruz was required to file an application for discretionary appeal. See OCGA § 5-6-35 (a) (5); Jones v. State, 322 Ga. App. 269,

1 The trial court entered its order denying Cruz’s motion on October 10, 2018. On November 9, 2018, Cruz filed a motion for an extension of time to file a notice of appeal, which the trial court granted. Cruz thereafter filed his notice of appeal within the extended period of time. See OCGA § 5-6-39 (a) (1), (d) (providing that a trial court may grant a motion for extension of time to file a notice of appeal). 269 n.2 (745 SE2d 1) (2013); Todd v. State, 236 Ga. App. 757, 757 (513 SE2d 287) (1999). His failure to do so deprives us of jurisdiction over this appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia 02/11/2019 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.