Wayne Lee Kitchens v. State

Court of Appeals of Georgia

Wayne Lee Kitchens v. State

DecidedMarch 26, 2015

DocketA15D0303

StatusPublished

This text of Wayne Lee Kitchens v. State (Wayne Lee Kitchens v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Wayne Lee Kitchens v. State, (Ga. Ct. App. 2015).

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Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ March 26, 2015

The Court of Appeals hereby passes the following order:

A15D0303. WAYNE LEE KITCHENS v. THE STATE.

Wayne Lee Kitchens pled guilty to possession with intent to distribute and possession of marijuana. He subsequently filed a motion to vacate a void judgment and a motion for out-of-time appeal. The trial court denied the motion to vacate on October 16, 2014, and it denied the motion for out-of-time appeal on February 4, 2015. Kitchens filed this application for discretionary appeal from both orders on March 5, 2015. To be timely, a discretionary application 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). However, pretermitting the untimeliness of Kitchens’ appeal of the order denying his motion to vacate a void judgment, his application is timely as to the order denying his motion for an out-of-time appeal, and the denial of a motion for an out-of-time appeal is directly appealable. Lunsford v. State, 237 Ga. App. 696 (515 SE2d 198) (1999); see also Wetherington v. State, __ Ga. __ (Case No. S14A1525, decided February 2, 2015) (addressing merits of direct appeal from denial of motion for out-of-time appeal following guilty plea). Accordingly, the application for discretionary appeal is hereby GRANTED pursuant to OCGA § 5-6-35 (j). 1 Kitchens shall have ten days from the date of this order to file his notice of appeal in the trial court. OCGA § 5-6-35 (g). The clerk of the trial court is directed to include a copy of this order in the record transmitted to the Court of Appeals.

1 We note that OCGA § 5-6-34 (d) will permit Kitchens to also appeal from the denial of his motion to vacate a void judgment. Court of Appeals of the State of Georgia 03/26/2015 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.

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Court of Appeals of the State of Georgia

ATLANTA,____________________ March 26, 2015

The Court of Appeals hereby passes the following order:

A15D0303. WAYNE LEE KITCHENS v. THE STATE.

Wayne Lee Kitchens pled guilty to possession with intent to distribute and possession of marijuana. He subsequently filed a motion to vacate a void judgment and a motion for out-of-time appeal. The trial court denied the motion to vacate on October 16, 2014, and it denied the motion for out-of-time appeal on February 4, 2015. Kitchens filed this application for discretionary appeal from both orders on March 5, 2015. To be timely, a discretionary application 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). However, pretermitting the untimeliness of Kitchens’ appeal of the order denying his motion to vacate a void judgment, his application is timely as to the order denying his motion for an out-of-time appeal, and the denial of a motion for an out-of-time appeal is directly appealable. Lunsford v. State, 237 Ga. App. 696 (515 SE2d 198) (1999); see also Wetherington v. State, __ Ga. __ (Case No. S14A1525, decided February 2, 2015) (addressing merits of direct appeal from denial of motion for out-of-time appeal following guilty plea). Accordingly, the application for discretionary appeal is hereby GRANTED pursuant to OCGA § 5-6-35 (j). 1 Kitchens shall have ten days from the date of this order to file his notice of appeal in the trial court. OCGA § 5-6-35 (g). The clerk of the trial court is directed to include a copy of this order in the record transmitted to the Court of Appeals.

1 We note that OCGA § 5-6-34 (d) will permit Kitchens to also appeal from the denial of his motion to vacate a void judgment. Court of Appeals of the State of Georgia 03/26/2015 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.

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