Edward S. Rust v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 20, 2015

The Court of Appeals hereby passes the following order: A15D0398. EDWARD S. RUST v. THE STATE.

A jury found Edward S. Rust guilty of two counts of armed robbery, and his conviction was affirmed on appeal. See Rust v. State, 264 Ga. App. 893 (592 SE2d 525) (2003). Rust subsequently filed a motion for out-of-time appeal, which the trial court denied on March 11, 2014. Rust filed a discretionary application from this order on April 27, 2015. We lack jurisdiction. A discretionary application must be filed within 30 days of entry of the order sought 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 In re: S. M. B., 319 Ga. App. 125 (735 SE2d 122) (2012); Boyle v. State, 190 Ga. App. 734 (380 SE2d 57) (1989). Because this application was filed over a year after entry of the order that Rust seeks to appeal, it is untimely. Moreover,“[a]n out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal.” Kilgore v. State, 325 Ga. App. 874, 875 (1) (756 SE2d 9) (2014) (punctuation omitted). Because Rust has already had a direct appeal, he is not entitled to an out-of-time appeal. See Milliken v. State, 259 Ga. App. 144, 145 (575 SE2d 910) (2003). For these reasons, we lack jurisdiction over this application for discretionary appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia 05/20/2015 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.