Michael Lane Brewer v. J. Wade Padgett, Judge

Court of Appeals of the State of Georgia

ATLANTA,____________________ April 12, 2018

The Court of Appeals hereby passes the following order: A18A1324. MICHAEL LANE BREWER v. J. WADE PADGETT, JUDGE.

Michael Brewer currently is serving a prison sentence following his convictions for two counts of committing an act of child exploitation through the use of a computer or electronic device. We affirmed the denial of his motion for a new trial on direct appeal. Brewer v. State, 328 Ga. App. 801 (762 SE2d 622) (2014). Brewer filed this civil action in January 2017, seeking a writ of prohibition against a superior court judge. On July 27, 2017, the trial court granted the defendant’s motion to dismiss for lack of proper service. On September 5, 2017, Brewer filed a notice of appeal to the Supreme Court, which transferred the appeal to this Court. We lack jurisdiction for two reasons. First, under the Prison Litigation Reform Act of 1996, an appeal in a civil action filed by a prisoner must be initiated by filing an application for discretionary review. See OCGA § 42-12-8, cross-referencing OCGA § 5-6-35; Jones v. Townsend, 267 Ga. 489, 490 (480 SE2d 24) (1997). Because Brewer was incarcerated when he filed this civil action, his failure to comply with the discretionary review procedure deprives us of jurisdiction over this direct appeal. See Jones, 267 Ga. at 490-491. Second, even if Brewer had a right of direct appeal here, this appeal is untimely. A notice of appeal must be filed within 30 days of entry of the trial court order sought to be appealed. 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. See

Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Brewer filed his notice of appeal 40 days after entry of the trial court order he seeks to appeal. For the above reasons, this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 04/12/2018 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.