Ivan Gonzalez v. State

• Court: Court of Appeals of Georgia
• Decided: February 1, 2018
• Docket: A18A1053
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ February 01, 2018

The Court of Appeals hereby passes the following order:

A18A1053. IVAN GONZALEZ v. THE STATE.

After pleading guilty, Ivan Gonzalez filed a motion for out-of-time appeal, which the trial court denied on August 11, 2017. Gonzalez filed a notice of appeal from this ruling, which was entered in the trial court on September 14, 2017. The trial court transmitted the appeal, which we dismissed as untimely. See Case Number A18A0600, dismissed Nov. 1, 2017. Upon receipt of our dismissal order, Gonzalez filed a second notice of appeal from the August 11, 2017 order, asserting that he deposited his notice of appeal with prison officials for mailing within 30 days and thus should be given the benefit of the mailbox rule. We are unable to deem Gonzalez’s notice of appeal timely based upon the “mailbox rule,” which “applies only in the narrow context of habeas corpus appeals to permit a pro se prisoner’s notice of appeal to be deemed filed on the date delivered to prison authorities.” Riley v. State, 280 Ga. 267, 268 (626 SE2d 116) (2006). It does not “exempt a pro se prisoner from complying with the statutory requirements to file a timely notice of appeal in any non-habeas criminal or civil filing.”1 Id.; see also McCroskey v. State, 291 Ga. App. 15, 16 (2) (660 SE2d 735) (2008). While we are sympathetic to Gonzalez’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.

1 Gonzalez cites to Court of Appeals Rule 4 (d) in support of his contention that the mailbox rule applies. This rule, however, pertains only to filings in this Court, not filings in the trial court. App. 711 (769 SE2d 133) (2015) (citation and punctuation omitted; emphasis added). We thus lack jurisdiction over this appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 02/01/2018 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.