Kendrick D. Heath v. State

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ June 26, 2019

The Court of Appeals hereby passes the following order:

A19A2163. KENDRICK D. HEATH v. THE STATE.

A jury found Kendrick Heath guilty of burglary and two other offenses, and we affirmed the denial of his motion for a new trial on appeal. Heath v. State, No. A16A1839 (Dec. 6, 2016). In May 2019, Heath filed a motion entitled “Motion for 20 Days Notice Seeking an Extrao[r]dinary Motion for New Trial,” which the trial court construed as an extraordinary motion for a new trial and denied.1 Heath then filed a notice of appeal to this Court. We lack jurisdiction. An appeal from an order denying an extraordinary motion for a new trial must be initiated by filing an application for discretionary review. OCGA § 5-6-35 (a) (7), (b); Balkcom v. State, 227 Ga. App. 327, 329 (489 SE2d 129) (1997). “Compliance with the discretionary appeals procedure is jurisdictional.” Smoak v. Dept. of Human Resources, 221 Ga. App. 257, 257 (471 SE2d 60) (1996). Heath’s failure to follow the discretionary appeal procedure deprives us of jurisdiction over this direct appeal, which is hereby DISMISSED. See id. at 258.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 06/26/2019 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.

1 Although the trial court misidentifies Heath as “Harry Smith” in the body of its denial order, the case caption of the order correctly identifies the movant as Heath.