Jason Todd Smith v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ February 14, 2019

The Court of Appeals hereby passes the following order: A19A1279. JASON TODD SMITH v. THE STATE.

Jason Todd Smith pled guilty to four counts of possessing child pornography, and the trial court sentenced him on July 9, 2018. Smith subsequently filed a pro se “motion for clarification of sentence,” arguing that he was not given credit for time served following his arrest. On November 21, 2018, the trial court dismissed the motion on the basis that the court was not responsible for calculating credit for time served. On December 21, 2018, Smith filed a notice of appeal, purporting to appeal the trial court’s July 9, 2018 decision. Under OCGA § 5-6-38 (a), a notice of appeal must be filed within 30 days after entry of the order to be appealed. The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction on this Court. See Veasley v. State, 272 Ga. 837, 838 (537 SE2d 42) (2000). Here, Smith’s notice of appeal, which was filed 165 days after sentence was entered, is untimely as to the trial court’s July 9, 2018 sentencing order. To the extent Smith seeks to appeal the trial court’s order dismissing his motion regarding credit for time served, we are unable to consider the appeal. The proper method for challenging credit for time served is through a mandamus action against prison officials. See Warbington v. State, 303 Ga. 649, 651 (814 SE2d 351) (2018). Such a motion filed in a criminal case is a nullity, which presents nothing to appeal. See id.

For these reasons, we lack jurisdiction to consider Smith’s appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 02/14/2019 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.