Willjarvis Tyrell McIntosh v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ April 11, 2019

The Court of Appeals hereby passes the following order: A19A1663. WILLJARVIS TYRELL MCINTOSH v. THE STATE.

On December 17, 2018, Hart County Superior Court revoked the balance of Willjarvis Tyrell McIntosh’s probation. McIntosh filed an application for discretionary review in this Court, which we granted. See Case No. A19D0288 (Feb. 5, 2019). Thereafter, based on our grant of his application, McIntosh filed a notice of appeal in Elbert County, purporting to appeal from that court’s December 14, 2018 order revoking his probation. We lack jurisdiction. Pursuant to OCGA § 5-6-35 (a) (5), appeals from orders revoking probation must come by discretionary application. And for all discretionary applications, “[t]he application shall specify the order or judgment being appealed” and include “a copy of the order or judgment being appealed . . .” OCGA § 5-6-35 (b), (c); Georgia Court of Appeals Rule 31 (c) (“Discretionary applications must contain a stamped ‘filed’ copy of the trial court’s order or judgment from which the appeal is sought.”). With his application, McIntosh submitted petitions for revocation of probation filed in both Hart County and Elbert County. But he only sought review of – and was only granted a discretionary application regarding – the December 17, 2018 order from Hart County. Accordingly, McIntosh is not entitled to a direct appeal of the proceedings in Elbert County. See Stephenson v. Futch, 213 Ga. 247, 248 (2) (98 SE2d 374) (1957) (“[T]here is no authority in law for the review of the two judgments

in a single bill of exceptions[.]”). Because McIntosh failed to follow the discretionary appeal procedure to seek review of the Elbert County order, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 04/11/2019 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.