William Middleton v. State

Court of Appeals of the State of Georgia

ATLANTA,__________________ February 14, 2013

The Court of Appeals hereby passes the following order: A13D0218. WILLIAM MIDDLETON v. THE STATE.

In November of 2005, William Middleton was convicted of sexual exploitation of children. Nearly seven years later, he filed an extraordinary motion for new trial, which the superior court denied. In A13A0682, William Middleton sought to directly appeal the superior court’s October 2012 order denying his extraordinary motion for new trial. We dismissed the appeal for lack of jurisdiction because the order was not directly appealable. See OCGA § 5-6-35 (a) (7); Balkcom v. State, 227 Ga. App. 327, 329 (489 SE2d 129) (1997) (to appeal the denial of an extraordinary motion for new trial, a party must file an application for discretionary appeal). On January 24, 2013, Middleton filed an application seeking a discretionary appeal of the trial court’s October 2012 order. However, this application is untimely. A discretionary application must be filed within 30 days of the order to be appealed. See OCGA § 5-6-35 (d). 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 lack jurisdiction to consider Middleton’s untimely application, which is hereby DISMISSED.

Court of Appeals of the State of Georgia 02/14/2013 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.