Kevin Stallworth v. Karnitha N. Hammond

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ November 29, 2022

The Court of Appeals hereby passes the following order:

A23D0119. KEVIN STALLWORTH v. KARNITHA N. HAMMOND et al.

On August 12, 2022, the trial court entered an order dismissing Kevin Stallworth’s petition for legitimation.1 Stallworth filed a motion for reconsideration, which the trial court denied on September 26, 2022.2 Stallworth filed the instant application for discretionary appeal on November 4, 2022, seeking review of the trial court’s order denying his motion for reconsideration. We, however, lack jurisdiction. To be timely, a discretionary application must be filed within 30 days of the entry of the order, decision, or judgment sought to be appealed. OCGA § 5-6-35 (d). This statutory deadline is jurisdictional, and this Court cannot accept an application for appeal not made in compliance with OCGA § 5-6-35 (d). See In the Interest of B. R. F., 299 Ga. 294, 298 (788 SE2d 416) (2016) (holding that an appellate court lacks jurisdiction over an untimely application for discretionary appeal); Hair Restoration Specialists v. State, 360 Ga. App. 901, 903 (862 SE2d 564) (2021) (compliance with the discretionary appeals procedure is jurisdictional, and failure to comply with that

1 Stallworth appears to argue that he did not receive notice of the hearing that occurred on August 12, 2022, and that he did not receive the trial court’s order entered on that date. If his right to timely seek appellate review was frustrated due to a trial court error, his remedy is to petition the trial court to vacate and re-enter the order at issue in the manner described in Cambron v. Canal Ins. Co., 246 Ga. 147, 148-149 (1) (269 SE2d 426) (1980). 2 Neither Stallworth’s petition for legitimation nor his motion for reconsideration is included in the application materials, in violation of Court of Appeals Rule 31 (e). procedure requires dismissal of the appeal). Moreover, the denial of a motion for reconsideration of an appealable order or judgment is not itself appealable and the filing of a motion for reconsideration does not extend the time for filing a discretionary application for appeal. See Bell v. Cohran, 244 Ga. App. 510, 511 (536 SE2d 187) (2000); Savage v. Newsome, 173 Ga. App. 271, 271 (326 SE2d 5) (1985). Because Stallworth’s application was filed 84 days after the order dismissing his petition for legitimation and the order he seeks to appeal is not directly appealable, we lack jurisdiction to consider it. Accordingly, this application is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 11/29/2022 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.