Johnny Brett Gregory v. Pat Giddene

Court of Appeals of the State of Georgia

ATLANTA,_________________ July 26, 2012

The Court of Appeals hereby passes the following order: A12D0443. JOHNNY BRETT GREGORY v. PAT GIDDENE, et al.

Johnny Brett Gregory filed a civil action against various defendants. On March 22, 2012, the trial court dismissed Gregory’s case. On May 23, 2012, Gregory filed a “petition for a writ of certiorari,” which has been docketed as an application for discretionary appeal.1 In his application, Gregory asserts that he did not receive notice of the dismissal until May 7, 2012. We lack jurisdiction because the application is untimely. To be valid, a discretionary application must be filed within 30 days of entry of the order at issue. OCGA § 5-6-35 (d). Gregory’s application was filed 62 days after the superior court entered its order. The requirements of OCGA § 5-6-35 are jurisdictional, and this Court cannot accept an application for appeal not made in compliance therewith. See Boyle v. State, 190 Ga. App. 734 (380 SE2d 57) (1989). We have held that, even when untimeliness is attributable to the clerk of the court, it does not cure the jurisdictional defect. See Cranman Ins. Agency v. Wilson Marine Sales & Svc., 147 Ga. App. 590, 591 (249 SE2d 631) (1978); Banks v. Green, 205 Ga. App. 589 (423 SE2d 31) (1992). Accordingly, we lack jurisdiction, and this application is hereby DISMISSED.2 Gregory’s Motion to Strike is DENIED as moot.

1 Gregory filed his petition/application in the Supreme Court, which transferred the matter here. 2 Gregory may be entitled to have the order re-entered by the trial court in order to restart the time in which to file an application. See Cambron v. Canal Ins. Co., 246 Ga. 147 (1) (269 SE2d 426) (1980).

Court of Appeals of the State of Georgia 07/26/2012 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.