David Ray Hayes v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ September 14, 2016

The Court of Appeals hereby passes the following order: A17D0064. DAVID RAY HAYES v. THE STATE.

In October 2015, David Ray Hayes was convicted of aggravated assault and possession of a knife during the commission of a crime, for which he was sentenced to 25 years, with 7 years to serve in confinement. In July 2016, Hayes filed a motion for sentence modification. The trial court denied the motion on July 29, 2016, and Hayes filed this application for discretionary appeal on September 2, 2016.

A sentencing court may modify a sentence within one year of its imposition or within 120 days after remittitur following a direct appeal, whichever is later. See OCGA § 17-10-1 (f). The denial of a timely motion to modify a sentence under OCGA § 17-10-1 (f) may be appealed directly. See, e. g., Anderson v. State, 290 Ga. App. 890 (660 SE2d 876) (2008); Maldonado v. State, 260 Ga. App. 580 (580 SE2d 330) (2003).

Ordinarily, when a party applies for discretionary review of a directly appealable order, we grant the application under OCGA § 5-6-35 (j). To fall within this general rule, however, the application must be filed within 30 days of entry of the order or judgment to be appealed. OCGA § 5-6-35 (d); Hill v State, 204 Ga. App. 582, 583 (420 SE2d 393) (1992). 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, 734 (380 SE2d 57) (1989). Here, Hayes filed his application 35 days after the trial court’s order was entered. Accordingly, the application is untimely, and it is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia 09/14/2016 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.