Robert Ray Whipkey v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 02, 2019

The Court of Appeals hereby passes the following order: A19A0897. ROBERT RAY WHIPKEY v. THE STATE.

In September 2010, Robert Ray Whipkey pleaded guilty to theft by taking and three drug possession charges. The trial court imposed a total three-year sentence, which Whipkey was permitted to serve on probation with adjudication of guilt deferred under the conditional-discharge statute, OCGA § 16-13-2. In May 2014, the trial court entered an order discharging and acquitting Whipkey of all charges. On October 29, 2014, the trial court declared void and vacated Whipkey’s discharge and acquittal,1 adjudicated him guilty, and reimposed the original sentence. Whipkey then filed the instant notice of appeal on November 11, 2014. We, however, lack jurisdiction. An appeal from the revocation of conditional-discharge probation and adjudication of guilt under OCGA § 16-13-2 must be initiated by an application for discretionary review under OCGA § 5-6-35 (a) (5). See Andrews v. State, 276 Ga. App. 428, 430-431 (1) (623 SE2d 247) (2005). “Compliance with the discretionary appeals procedure is jurisdictional.” Smoak v. Dept. of Human Resources, 221 Ga. App. 257, 257 (471 SE2d 60) (1996).

1 The trial court found Whipkey ineligible for consideration under the conditional-discharge statute, OCGA § 16-13-2, because of a prior drug conviction in Alabama that he had failed to disclose to the court during his plea proceedings.

Whipkey’s failure to comply with the applicable appellate procedure deprives us of jurisdiction over his appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 01/02/2019 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.