Howard W. Clyde, Jr. v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ September 20, 2018

The Court of Appeals hereby passes the following order: A19A0348. HOWARD W. CLYDE, JR. v. THE STATE.

In 2009, Howard W. Clyde, Jr., pleaded guilty to terroristic threats and acts and obstruction of an officer, and he received a sentence that included probation. In 2017, the trial court revoked Clyde’s probation after he stipulated that he had committed a new felony offense. Clyde filed a “Motion to Correct a Clerical Error,” arguing that the revocation order was void because the State had subsequently dead docketed the related criminal charges against him. On June 29, 2018, the trial court entered an order denying Clyde’s motion, and on August 13, 2018, Clyde filed a notice of appeal to this Court. We lack jurisdiction for two reasons. First, an application for discretionary appeal is required to appeal orders revoking probation. OCGA § 5-6-35 (a) (5); see Todd v. State, 236 Ga. App. 757, 758 (513 SE2d 287) (1999) (holding that where the underlying subject matter is probation revocation, the discretionary appeal procedure applies); accord White v. State, 233 Ga. App. 873, 874 (505 SE2d 228) (1998). The underlying subject matter of Clyde’s “Motion to Correct a Clerical Error” was the revocation of his probation. Thus, a discretionary application was required here. Second, even if Clyde had a right of direct appeal, his notice of appeal was not timely filed. A notice of appeal must be filed within 30 days of entry of the 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. Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Clyde’s notice of appeal, filed 45 days after entry of the order denying his “Motion to Correct a Clerical Error,” was untimely.

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,____________________ 09/20/2018 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.