Joseph Agey v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ June 28, 2017

The Court of Appeals hereby passes the following order: A17A1795. JOSEPH AGEY v. THE STATE.

Joseph Agey pled guilty to numerous counts of sexual exploitation of children. He subsequently filed a pro se motion for a transcript at State expense in order to pursue habeas relief. The trial court denied the motion on December 22, 2016, and Agey filed a notice of appeal on February 14, 2017. We lack jurisdiction for two reasons. First, this appeal is untimely. A notice of appeal must be filed within 30 days after the entry of the trial court’s order. OCGA § 5-6-38 (a). The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction on this Court. Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Here, however, Agey filed his notice of appeal 54 days after the trial court’s order was entered. Second, the trial court’s order is not subject to direct appeal. As this Court has held: if no petition for habeas corpus is pending at the time an indigent prisoner makes any application for a transcript . . . for purposes of collateral attack upon his conviction or sentence, that application will be treated as a separate civil action subject to the procedures and requirements of the Prison Litigation Reform Act of 1996. Specifically, appeals from the denial of any such application for free transcripts for post-conviction collateral attack must comply with the discretionary appeal procedures of OCGA § 5-6-35.

Coles v. State, 223 Ga. App. 491, 492 (1) (477 SE2d 897) (1996); see also OCGA § 42- 12-8. Because Agey has not shown that he has a pending habeas corpus petition, he was required to appeal the denial of his request for court records by discretionary application. His failure to do so deprives us of jurisdiction over this appeal. For these reasons, we lack jurisdiction over this appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 06/28/2017 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.