EDWARD BARBER v. LAWRENCE WHITTINGTON

• Court: Court of Appeals of Georgia
• Decided: February 7, 2022
• Docket: A22A0810
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ February 07, 2022

The Court of Appeals hereby passes the following order:

A22A0810. EDWARD BARBER v. LAWRENCE WHITTINGTON et al.

On December 22, 2021, we granted prisoner Edward Barber’s pro se application for discretionary appeal. See Case No. A22D0170. In our order, we directed Barber to file his notice of appeal within ten days. On January 6, 2022, the notice of appeal was filed in superior court. OCGA § 5-6-35 (g) imposes a mandatory obligation on an appellant to file a notice of appeal within ten days of the granting of a discretionary appeal. We note that Barber’s notice of appeal is dated December 29, 2021. But this notice was not entered by the trial court until eight days later on January 6, 2022. The latter date is the filing date. See Wal- Mart Stores v. Curry, 206 Ga. App. 775, 776 (426 SE2d 581) (1992) (“The entry of filing by the clerk is the best evidence of the date of filing and is presumed to be correct until the contrary is shown.”). While we are sympathetic to Barber’s dependence upon prison officials to handle legal mail promptly, “the proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” Davis v. State, 330 Ga. App. 711, 711 (769 SE2d 133) (2015) (punctuation omitted; emphasis in original). Accordingly, we lack jurisdiction to consider this appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 02/07/2022 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.