Myles Pembleton v. State

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ July 24, 2019

The Court of Appeals hereby passes the following order:

A19D0546. MYLES PEMBLETON v. THE STATE.

In 2018, Myles Pembleton was convicted of armed robbery, aggravated assault, other offenses. In 2019, Pembleton filed a motion for out-of-time appeal. On April 30, 2019, the trial court denied Pembleton’s motion. Pembleton then filed this application for discretionary review on July 1, 2019.1 We, however, lack jurisdiction. The denial of a motion for an out-of-time appeal is directly appealable when the criminal conviction at issue has not been the subject of direct appeal. English v. State, 307 Ga. App. 544, 545 n.4 (705 SE2d 667) (2010). Ordinarily, we will grant an otherwise timely application for discretionary appeal if the lower court’s order is subject to direct appeal. See OCGA § 5-6-35 (j). To fall within this general rule, however, the application must be filed within 30 days of entry of the order to be appealed. See OCGA § 5-6-35 (d), (j). Here, Pembleton filed his application 62 days after the entry of the order he seeks to appeal.

1 Pembleton also filed a notice of appeal that was docketed in Case No. A19A2374. Accordingly, because Pembleton failed to file his application within 30 days after the entry of the order he seeks to appeal, his application is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 07/24/2019 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.