Mario D. Westbrook v. State

• Court: Court of Appeals of Georgia
• Decided: December 14, 2020
• Docket: A21D0126
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ December 10, 2020

The Court of Appeals hereby passes the following order:

A21D0126. MARIO D. WESTBROOK v. THE STATE.

On October 12, 2020, the trial court entered an order dismissing Mario D. Westbrook’s general demurrer to his indictment. On November 18, 2020, Westbrook filed an application for discretionary appeal seeking review of the trial court’s order. We lack jurisdiction. An application for discretionary appeal must be filed within 30 days of entry of the order to be appealed. OCGA § 5-6-35 (d); Hill v. State, 204 Ga. App. 582 (420 SE2d 393) (1992). We lack jurisdiction to consider an untimely application. See Hill, supra at 583. Here, Westbrook filed his application 37 days after the trial court’s order was entered. Even if Westbrook had filed his application in a timely manner, we would nonetheless lack jurisdiction. The dismissal of Westbrook’s general demurrer must be appealed in accordance with the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b) – including obtaining a certificate of immediate review from the trial court. See OCGA § 5-6-34 (b); Ivey v. State, 210 Ga. App. 782, 783 (437 SE2d 810) (1993) (appeal of order overruling special demurrer required compliance with interlocutory appeal procedure). Westbrooks’s failure to follow the proper appellate procedures also deprives us of jurisdiction over this application. According, this application is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 12/10/2020 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.