James Kelly Howard v. State

• Court: Court of Appeals of Georgia
• Decided: May 11, 2018
• Docket: A18D0436
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 07, 2018

The Court of Appeals hereby passes the following order:

A18D0436. JAMES KELLY HOWARD v. THE STATE.

In 2010, James Kelly Howard was convicted of attempted murder, aggravated assault, aggravated battery, cruelty to children in the first degree, and other offenses stemming from his stabbing attack upon a victim and her minor daughter. We affirmed his convictions on appeal. See Howard v. State, 318 Ga. App. 329 (733 SE2d 859) (2012). In 2016, Howard filed a pro se “Motion to Set Aside the Verdict and Vacate a Void Judgment.” The trial court dismissed the motion, and we dismissed Howard’s subsequent application for discretionary appeal for lack of jurisdiction. See Howard v. State, Case No. A16D0445 (decided July 15, 2016). Howard thereafter filed a second pro se “Motion to Set Aside a Void Judgment.” On January 25, 2018, the trial court entered an order denying the motion. Howard filed this application for discretionary appeal on April 20, 2018. We, however, lack jurisdiction for several reasons. First, to be timely, an application for discretionary appeal must be filed within 30 days of the entry of the order or judgment to be appealed. See OCGA § 5-6-35 (d); Hill v. State, 204 Ga. App. 582, 582 (420 SE2d 393) (1992). The requirements of OCGA § 5-6-35 are jurisdictional, and this Court cannot accept an application for appeal not made in compliance therewith. Boyle v. State, 190 Ga. App. 734, 734 (380 SE2d 57) (1989). Howard filed this application 85 days after entry of the order he seeks to appeal, and it is therefore untimely. Second, the Supreme Court has made clear that a motion seeking to challenge an allegedly invalid or void judgment of convictions “is not one of the established procedures for challenging the validity of a judgment in a criminal case” and that an appeal from the denial of such a motion is subject to dismissal. Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010); Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786) (2009). Howard is not authorized to collaterally attack his convictions in this manner. For these reasons, this application is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 05/07/2018 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.