Eddie Green v. Melvin Richards

Court of Appeals of the State of Georgia

ATLANTA,__________________ August 28, 2014

The Court of Appeals hereby passes the following order: A14A2304. EDDIE GREEN v. MELVIN RICHARDS et al.

On December 5, 2013, the superior court dismissed state prisoner Eddie Green’s pro se civil action against Deputy Melvin Richards, Sheriff R. L. Conway, and the City of Lawrenceville. On February 26, 2014, Green filed a motion for an out- of-time appeal, which the trial court denied on March 10, 2014. Green subsequently filed notices of appeal on March 19, 2014, May 27, 2014, June 20, 2014, and July 2, 2014. We lack jurisdiction for two reasons. First, OCGA § 5-6-38 (a) requires that a notice of appeal be filed within 30 days after entry of an appealable order. Green’s first notice of appeal was filed 104 days after the superior court dismissed his case. Because the notice of appeal was not timely filed, Green is not entitled to a direct appeal. Although Green filed a motion for an out-of-time appeal, an out-of-time appeal is a judicially-created remedy that is limited to criminal cases. See, e. g., Cody v. State, 277 Ga. 553 (592 SE2d 419) (2004). Out-of-time appeals are not available in civil cases. See Woodall v. Woodall, 248 Ga. 172 (281 SE2d 619) (1981); Register v. Elliott, 285 Ga. App. 741, 744 (647 SE2d 406) (2007). Accordingly, the trial court’s order resolving Green’s request for an out-of-time appeal is not subject to appellate review, and this appeal is untimely. Second, OCGA § 42-12-8 requires that an appeal of a civil action filed by a prisoner “shall be as provided in Code Section 5-6-35.” Under OCGA § 5-6-35, the party wishing to appeal must file an application for discretionary appeal to the appropriate appellate court. Green’s failure to file an application for discretionary appeal in this case deprives this Court of jurisdiction over this direct appeal. See Jones v. Townsend, 267 Ga. 489 (480 SE2d 24) (1997).

For these reasons, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia 08/28/2014 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.