Kenneth Malone v. Deborah Benefield, Judge

Court of Appeals of the State of Georgia ATLANTA,____________________ April 06, 2018 The Court of Appeals hereby passes the following order: A18A1371. KENNETH MALONE v. DEBORAH BENEFIELD, JUDGE et al. In 2010, Kenneth B. Malone was convicted of several offenses, including aggravated assault, and we affirmed his convictions in an unpublished opinion. Malone v. State, Case No. A12A0168 (May 31, 2012). In 2015, Malone filed four pro se motions contending, generally, that his sentence is void because his indictment was fatally defective. The trial court denied Malone’s motions, and he filed a second appeal. We dismissed his appeal for lack of jurisdiction because he failed to make a valid void-sentence argument. Malone v. State, Case No. A16A0380 (December 28, 2015). In 2017, Malone initiated a separate civil action and filed a “Petition to Set Aside Void Judgment Lacking Subject Matter Jurisdiction.” In his petition, Malone again argued that his indictment was defective. The trial court denied the motion and dismissed his petition. Malone filed this direct appeal. We, however, lack jurisdiction for two reasons. First, as Malone is incarcerated, his appeal is controlled by the Prison Litigation Reform Act of 1996. See OCGA § 42-12-1 et seq. 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[,]” which requires an application for discretionary appeal. Accordingly, we are unable to consider Malone’s direct appeal. See Jones v. Townsend, 267 Ga. 489 (480 SE2d 24) (1997). Second, Malone’s appeal is also subject to dismissal because he is not authorized to collaterally attack his conviction in this manner. See id.; see also Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786) (2009); Daker v. Ray, 275 Ga. 205, 206 (1) (563 SE2d 429) (2002) (holding that the trial court correctly denied prisoner’s filing because a civil action is not an appropriate method of challenging the validity of a criminal conviction and sentence). For these reasons, this appeal is hereby DISMISSED Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 04/06/2018 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.