Wayne Lee Kitchens v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ March 26, 2015

The Court of Appeals hereby passes the following order: A15D0303. WAYNE LEE KITCHENS v. THE STATE.

Wayne Lee Kitchens pled guilty to possession with intent to distribute and possession of marijuana. He subsequently filed a motion to vacate a void judgment and a motion for out-of-time appeal. The trial court denied the motion to vacate on October 16, 2014, and it denied the motion for out-of-time appeal on February 4, 2015. Kitchens filed this application for discretionary appeal from both orders on March 5, 2015. To be timely, a discretionary application must be filed within 30 days of entry of the order to be appealed. OCGA § 5-6-35 (d); Hill v. State, 204 Ga. App. 582 (420 SE2d 393) (1992). However, pretermitting the untimeliness of Kitchens’ appeal of the order denying his motion to vacate a void judgment, his application is timely as to the order denying his motion for an out-of-time appeal, and the denial of a motion for an out-of-time appeal is directly appealable. Lunsford v. State, 237 Ga. App. 696 (515 SE2d 198) (1999); see also Wetherington v. State, __ Ga. __ (Case No. S14A1525, decided February 2, 2015) (addressing merits of direct appeal from denial of motion for out-of-time appeal following guilty plea). Accordingly, the application for discretionary appeal is hereby GRANTED pursuant to OCGA § 5-6-35 (j). 1 Kitchens shall have ten days from the date of this order to file his notice of appeal in the trial court. OCGA § 5-6-35 (g). The clerk of the trial court is directed to include a copy of this order in the record transmitted to the Court of Appeals.

1 We note that OCGA § 5-6-34 (d) will permit Kitchens to also appeal from the denial of his motion to vacate a void judgment.

Court of Appeals of the State of Georgia 03/26/2015 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.