Robert Ortiz v. State

• Court: Court of Appeals of Georgia
• Decided: May 11, 2015
• Docket: A15D0352
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 05, 2015

The Court of Appeals hereby passes the following order:

A15D0352. ROBERT ORTIZ v. THE STATE.

Robert Ortiz was convicted in 1995 of rape, burglary and aggravated sodomy. He was sentenced to life without parole. Approximately 20 years later, Ortiz moved the court to re-sentence him on the basis that there has been a substantive change in the law that allowed the trial court to sentence him to less than the mandatory minium sentence of life without parole. On February 6, 2015, the trial court denied the motion, finding that the statute cited by Ortiz was inapplicable and the statute cannot be applied retroactively. On April 7, 2015, Ortiz filed this pro se application for discretionary appeal. We lack jurisdiction. Pretermitting whether Ortiz had a right to directly appeal the order denying his motion for re-sentencing, both an application for discretionary appeal and a direct appeal must be filed within 30 days of entry of the order or judgment to be appealed. See OCGA §§ 5-6-35 (d), 5-6-38 (a). The requirements of OCGA §§ 5-6-35 and 5-6- 38 are jurisdictional, and this Court lacks jurisdiction to consider an untimely application or an untimely appeal. See Legare v. State, 269 Ga. 468, 469 (499 SE2d 640) (1998); Boyle v. State, 190 Ga. App. 734 (380 SE2d 57) (1989). Because Ortiz filed his application 60 days after entry of the order he seeks to appeal, the application is untimely and hereby DISMISSED for lack of jurisdiction. Court of Appeals of the State of Georgia 05/05/2015 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.