Kenneth Wayne Clay v. State

• Court: Court of Appeals of Georgia
• Decided: January 18, 2024
• Docket: A24A0747
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 18, 2024

The Court of Appeals hereby passes the following order:

A24A0747. KENNETH WAYNE CLAY v. THE STATE.

In February 2019, Kenneth Wayne Clay pleaded guilty to one count of failing to register as a sex offender. Over four years later, in August 2023, Clay filed an extraordinary motion for a new trial. The trial court dismissed that motion, and Clay filed this direct appeal.1 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.” Hair Restoration Specialists v. State of Ga., 360 Ga. App. 901, 903 (862 SE2d 564) (2021) (punctuation omitted). Thus, Clay’s failure to follow the proper procedure deprives us of jurisdiction over this appeal. Moreover, to the extent that Clay’s extraordinary motion for a new trial may be construed as a motion to vacate his judgment of conviction, “a petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case[,]” and any appeal from an order denying or dismissing such a petition or motion must be dismissed. Harper v. State, 286 Ga. 216, 218 (1), (2) (686 SE2d 786) (2009); see also Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150) (2010). For each of the

1 This appeal represents Clay’s third appearance before this Court. In 2020, we dismissed, in an unpublished opinion, Clay’s appeal from an order denying his motion to correct an illegal and void sentence. See Case No. A20A0720 (April 3, 2020). Last year, we dismissed Clay’s appeal from an order denying his post-conviction motion to suppress evidence. See Case No. A23A1180 (March 30, 2023). above reasons, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 01/18/2024 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.