Elmore Spooney, Jr. v. State

• Court: Court of Appeals of Georgia
• Decided: June 11, 2012
• Docket: A12D0391
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,_________________ June 11, 2012

The Court of Appeals hereby passes the following order:

A12D0391. ELMORE SPOONEY, JR. v. THE STATE.

On March 6, 2012, the trial court entered an order revoking Elmore Spooney, Jr.’s probation. On March 21, 2012, Spooney submitted a pro se application for discretionary appeal to this Court. We could not accept the application for filing because it did not contain the requisite filing fee or a pauper’s affidavit. See OCGA § 5-6-4 (“The clerk is prohibited from receiving the application for appeal or the brief of the appellant unless the costs have been paid or a sufficient affidavit of indigence is filed and contained in the record.”); see also Court of Appeals Rule 30 (c). On May 11, 2012, Spooney submitted a pauper’s affidavit and his application was docketed. To be valid, an application for discretionary appeal must be filed within 30 days of the entry of the order or judgment to be appealed. OCGA § 5-6-35 (d); Hill v. State, 204 Ga. App. 582 (420 SE2d 393) (1992). Spooney’s application was filed 66 days after entry of the order he wishes to appeal and is therefore untimely. While this Court may grant an extension of time under OCGA § 5-6-39 to file an application for discretionary appeal, as long as the request for an extension is made before the original filing deadline, see Gable v. State, 290 Ga. 81, 85 (2) (a) (720 SE2d 170) (2011), Spooney’s initial submission on March 21, 2012 cannot be construed as a request for an extension of time and this case is hereby DISMISSED. Court of Appeals of the State of Georgia 06/11/2012 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.