James Query v. State

• Court: Court of Appeals of Georgia
• Decided: September 10, 2014
• Docket: A14D0479
• Status: Published

Opinion

Court of Appeals of the State of Georgia

August 27, 2014 ATLANTA,__________________

The Court of Appeals hereby passes the following order:

A14D0479. JAMES QUERY v. THE STATE.

James Query was convicted of manufacturing methamphetamine and possession of methamphetamine with intent to distribute in 1989. In 1995, this Court affirmed his convictions, but remanded the case for re-sentencing. See Query v. State, 217 Ga. App. 61 (456 SE2d 704) (1995). Query was re-sentenced and did not file an appeal of the re-sentence. In March of 2013, Query filed a motion for an out-of-time appeal, which was denied on July 3, 2014. On August 5, 2014, Query filed this application for discretionary appeal. The denial of a motion for an out-of-time appeal is generally subject to direct appeal. Lunsford v. State, 237 Ga. App. 696 (515 SE2d 198) (1999). And, ordinarily, if a party applies for discretionary review of a directly appealable order, we grant the application under OCGA § 5-6-35 (j). To fall within this general rule, however, the application must be filed within 30 days of entry of the order to be appealed. See OCGA § 5-6-35 (d) & (j); Hill v. State, 204 Ga. App. 582 (420 SE2d 393) (1992). Because Query filed his application 33 days after entry of the order he seeks to appeal, the application is untimely, and it is hereby DISMISSED for lack of jurisdiction. We note that Query has included with his application materials a July 21, 2014 letter from the trial court acknowledging that the court inadvertently sent a copy of the written order at issue to the wrong address. To the extent that Query’s ability to file a timely application was frustrated by the trial court’s action, Query’s remedy is to petition the trial court to set aside and re-enter the order. See Cambron v. Canal Ins. Co., 246 Ga. 147, 148-49 (1) (269 SE2d 426) (1980); Cameron v. Miles, 304 Ga. App. 161 (695 SE2d 691) (2010).

Court of Appeals of the State of Georgia 08/27/2014 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.