Jason Darius Mobuary v. State

• Court: Court of Appeals of Georgia
• Decided: April 9, 2020
• Docket: A20D0344
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ April 09, 2020

The Court of Appeals hereby passes the following order:

A20D0344. JASON DARIUS MOBUARY v. THE STATE.

In 2003, Jason Darius Mobuary pled guilty to enticing a child for indecent purposes. There is no indication in the application materials that Mobuary directly appealed his judgment of conviction. Recently, Mobuary filed pro se motions for an out of time appeal and appointment of counsel, which the trial court denied in separate orders on December 11, 2019. On February 3, 2020, Mobuary filed the instant application for discretionary review of those trial court orders in the Supreme Court, which transferred the application to this Court. See Supreme Court Case No. S20D0830 (transferred Feb. 27, 2020). We lack jurisdiction.

The denial of a motion for an out-of-time appeal is directly appealable when the conviction at issue has not been the subject of a direct appeal. See English v. State, 307 Ga. App. 544, 545 n.4 (705 SE2d 667) (2010); Lunsford v. State, 237 Ga. App. 696, 696 (515 SE2d 198) (1999). Generally, if a party applies for discretionary review of a directly appealable order, this Court grants 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); Hill v. State, 204 Ga. App. 582, 582 (420 SE2d 393) (1992). Here, Mobuary filed his untimely application 54 days after the trial court’s orders were entered. His application is therefore untimely and subject to dismissal. See Crosson v. Conway, 291 Ga. 220, 220 (1) (728 SE2d 617) (2012); see also Boyle v. State, 190 Ga. App. 734, 734 (380 SE2d 57) (1989) (“The requirements of OCGA § 5-6-35 are jurisdictional and this [C]ourt cannot accept an appeal not made in compliance therewith.”). Accordingly, this application is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 04/09/2020 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.