Martin Kendall v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ June 08, 2017

The Court of Appeals hereby passes the following order: A17D0435. MARTIN KENDALL v. THE STATE.

Martin Kendall, proceeding pro se, seeks to appeal an October 5, 2016 order denying his motion for credit for time served.1 Kendall filed his application for discretionary appeal on May 9, 2017. We lack jurisdiction.

An application for discretionary appeal must be filed within 30 days of the entry of the order or judgment 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 made beyond 30 days. See Boyle v. State, 190 Ga. App. 734, 734 (380 SE2d 57) (1989). Here, Kendall filed his application 216 days after the trial court’s order was entered. Accordingly, the application is untimely2 and is hereby

1 Kendall previously filed a motion for discretionary appeal from a court order denying his motion to vacate and/or correct an unlawful sentence. We denied that application. Case No. A17D0406 (denied April 28, 2017). 2 Furthermore, the trial court properly denied the motion because a claim for credit for time served should be directed to the Department of Corrections rather than the trial court. See Cutter v. State, 275 Ga. App. 888, 890 (2) (622 SE2d 96) (2005). If dissatisfied with the Department’s response, Kendall’s remedy would be to file a mandamus or injunction action against the Commissioner of the Department of Corrections. See id.

DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 06/08/2017 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.