Willie A. Smith, Jr. v. State

• Court: Court of Appeals of Georgia
• Decided: January 13, 2015
• Docket: A15D0206
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 13, 2015

The Court of Appeals hereby passes the following order:

A15D0206. WILLIE A. SMITH, JR. v. THE STATE.

After pleading guilty to cocaine trafficking, Willie A. Smith, Jr. filed a motion to set aside a void judgment and sentence. According to Smith, the State failed to present a sufficient factual basis for his guilty plea. The trial court dismissed the motion on November 7, 2014, and Smith filed this application for discretionary appeal on December 18, 2014. We lack jurisdiction. 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). Because this application was filed 41 days after entry of the order Smith seeks to appeal, it is untimely. We thus lack jurisdiction to consider the application, which is hereby DISMISSED. See Hill, supra. Even if the application had been timely, it would have been subject to dismissal. In Roberts v. State, the Supreme Court made clear that a motion seeking to challenge an allegedly invalid or void judgment of conviction “is not one of the established procedures for challenging the validity of a judgment in a criminal case.” Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010). Thus, Smith is not authorized to collaterally attack his conviction in this manner. See id.; Matherlee v. State, 303 Ga. App. 765 (694 SE2d 665) (2010).

Court of Appeals of the State of Georgia 01/13/2015 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.