William Hoyt Whittenburg v. State

• Court: Court of Appeals of Georgia
• Decided: January 5, 2023
• Docket: A23A0527
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 05, 2023

The Court of Appeals hereby passes the following order:

A23A0527. WILLIAM HOYT WHITTENBURG v. THE STATE.

William Hoyt Whittenburg pleaded guilty to trafficking in cocaine and was sentenced to 30 years with 13 to be served in confinement. Whittenburg later filed motions asserting claims for post-conviction relief, seeking an evidentiary hearing on those claims, and requesting that the trial court order that Whittenburg be produced for such a hearing. The trial court denied Whittenburg’s motions in orders dated August 29, 2022 and September 7, 2022. Whittenburg filed an application for discretionary review of the August 29, 2022, which we dismissed. See Case No. A23D0079 (dismissed on Oct. 21, 2022). Whittenburg also filed an application for discretionary review of the September 7, 2022 order, which we also dismissed. See Case No. A23D0091 (dismissed on Oct. 25, 2022). Whittenburg filed this notice of appeal on October 19, 2022, again seeking to appeal the trial court’s September 7, 2022 order. We lack jurisdiction. First, a notice of appeal must be filed within 30 days of the entry of the order sought to be appealed. OCGA § 5-6- 38 (a). The proper and timely filing of the notice of appeal is an absolute requirement to confer appellate jurisdiction upon this Court. Kelly v. State, 311 Ga. 827, 828 (860 SE2d 740) (2021) (punctuation omitted). Here, Whittenburg’s untimely notice of appeal was filed 42 days after entry of the order he seeks to appeal. Second, because we dismissed Whittenburg’s prior discretionary application seeking review of the September 7, 2022 order, the doctrine of res judicata bars him from seeking further appellate review of the trial court’s order. See Norris v. Norris, 281 Ga. 566, 567-568 (2) (642 SE2d 34) (2007); see also Echols v. State, 243 Ga. App. 775, 776 (534 SE2d 464) (2000) (“It is axiomatic that the same issue cannot be relitigated ad infinitum.”) (punctuation omitted). And, to the extent that Whittenburg also seeks review of the August 29, 2022 order, res judicata also bars him from seeking further appellate review of that order. Based on the foregoing, we lack jurisdiction over this direct appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 01/05/2023 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.