Mack Henry Lott v. Ralph Kemp, Warden

Opinion

Court of Appeals of the State of Georgia

ATLANTA,__________________ September 30, 2013

The Court of Appeals hereby passes the following order:

A14D0021. MACK HENRY LOTT v. RALPH KEMP, WARDEN, et al.

On July 24, 2013, Mack Henry Lott submitted a filing which was docketed as an application for discretionary appeal.1 He appears to be seeking review of the trial court’s June 16, 2011, order dismissing his complaint pursuant to OCGA § 42-12- 7.2.2 The respondents filed a motion to dismiss, arguing that we lack jurisdiction because Lott’s application is untimely. They are correct. An application for discretionary appeal must be filed within 30 days of the entry of the order or judgment to be appealed. See OCGA § 5-6-35 (d). The requirements of OCGA § 5- 6-35 are jurisdictional, and this Court cannot accept an application for appeal not made in compliance therewith. See Boyle v. State, 190 Ga. App. 734 (380 SE2d 57) (1989). Lott filed his application 769 days after entry of the order he seeks to appeal, so it is clearly untimely. Accordingly, the respondents’ motion to dismiss is hereby GRANTED, and this application is DISMISSED.

1 Because Lott was incarcerated when he filed his action below, his appeal is controlled by the Prison Litigation Reform Act of 1996, which requires that an appeal of a civil action filed by a prisoner “be as provided in Code Section 5-6-35.” OCGA § 42-12-8. 2 Lott submitted his filing to the Supreme Court, which transferred the matter here. Court of Appeals of the State of Georgia 09/30/2013 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.