James Jackson Carswell v. State

• Court: Court of Appeals of Georgia
• Decided: June 10, 2016
• Docket: A16D0381
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA, Mav26.2016

The Court ofAppeals hereby passes thefollowing order:

A16D0381. JAMES JACKSON CARSWELL v. THE STATE.

In 2010, James Jackson Carswell pled guilty to aggravated assault, obstruction ofan officer, criminal damage to property, and possession ofa firearm. Since that time, Carswell has filed multiple motions for sentence modification and appeals of the denials ofthose motions.1 In January 2016, Carswell filed a motion for out-of- time appeal. The trial court denied the motion on January 13, 2016. On May 12, 2016, Carswell filed this application for discretionary review of the trial court's denial of his motion for out-of-time appeal. We, however, lack jurisdiction. The denial of a motion for out-of-time appeal is directly appealable. See Lunsfordv. State, 237 Ga. App. 696, 696 (515 SE2d 198) (1999). Ordinarily, when aparty applies for discretionary review of adirectly appealable order, we grant the application under OCGA §5-6-35 {]). To fall within this general rule, however, the application must be filed within 30 days of entry of the order or judgment to be appealed. See OCGA §5-6-35 (d); Hill vState, 204 Ga. App. 582, 583 (420 SE2d 393) (1992). Here, Carswell filed his application 120 days after the trial court's order was entered. In his application, Carswell concedes his application was not timely filed. Nonetheless, he requests that this Court consider his untimely application. The proper and timely filing of the application, however, is an absolute requirement to confer appellate jurisdiction upon this Court. See Rowland v. State, 264 Ga. 872, 872

See Case Nos. Al 1D0143, A12A0339, A12D0009, A12A0805. (452 SE2d 756) (1995). Accordingly, the application is untimely and is hereby DISMISSED for lack of jurisdiction. See Hill, supra.

Court ofAppeals ofthe State of Georgia Clerk's Office, Atlanta, 05/26/2016 8? ji %. if :4% *\ I certify that the above is a true extract from •ft I ]* |l the minutes ofthe Court ofAppeals ofGeorgia. x(% \ri £f X\ il S-*' Witness my signature and the seal ofsaid court hereto affixed the dayandyear last above written.

JptfJw Clerk.