Dwayne Anderson v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ December 12, 2018

The Court of Appeals hereby passes the following order: A19A0645. ANDERSON v. THE STATE.

In 2010, Dwayne Anderson pled guilty to escape and was sentenced to ten years of probation. The trial court subsequently revoked four years of Anderson’s probation. Anderson filed a “Motion to Modify Sentence,” arguing that he was not given proper credit for time served and that the trial court was limited to revoking two years of probation because he had stipulated to his guilt only as to a misdemeanor. See, e.g., OCGA § 42-8-34.1 (c) (revocation for violation of “any general provision of probation or suspension other than by commission of a new felony offense” is limited to “the balance of probation or not more than two years in confinement, whichever is less”). The trial court denied Anderson’s motion, and he filed this direct appeal.

To appeal the revocation of his probation, Anderson was required to file an application for discretionary appeal. See OCGA § 5-6-35 (a) (5), (b); Jones v. State, 322 Ga. App. 269, 269, n. 2 (745 SE2d 1) (2013). Even assuming that Anderson is challenging only his sentence, and not the evidence supporting the revocation of probation, “[t]he underlying subject matter of [the] appeal is the probation revocation from which [Anderson] failed to apply for a discretionary appeal[.]” White v. State, 233 Ga. App. 873, 874 (505 SE2d 228) (1998) (dismissing appeal challenging the sentencing portion of a probation revocation based on a violation of a special condition of probation).

For this reason, Anderson’s appeal must be and is DISMISSED. Id.

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