Michael D. Dyer v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ October 28, 2020

The Court of Appeals hereby passes the following order: A21D0080. MICHAEL D. DYER v. THE STATE.

Michael Dyer, who currently is serving a prison sentence for aggravated child molestation, filed this pro se application for discretionary review, seeking to appeal multiple trial court orders – entered on May 14 and July 17, 2020 – denying and dismissing several post-conviction motions filed by him. As explained further below, we dismiss this application in part, deny it in part, and grant it in part only as to the trial court’s July 17, 2020 order denying Dyer’s second motion for an out-of-time appeal. This application – filed on August 16, 20201 – is hereby DISMISSED in part as untimely with respect to the trial court’s May 14, 2020 orders denying Dyer’s first motion for an out-of-time appeal and dismissing his motion to disclose Brady2 materials. See OCGA § 5-6-35 (d) (an application for discretionary review must be filed within 30 days of entry of the order or judgment to be appealed); Boyle v. State, 190 Ga. App. 734, 734 (380 SE2d 57) (1989) (the requirements of OCGA § 5-6-35 are jurisdictional, and this Court cannot accept an application for appeal not made in compliance therewith). Dyer’s application was untimely filed more than three months after the May 14 orders and more than 30 days after the Supreme Court restarted filing deadlines in Georgia on July 14, 2020, following its prior judicial emergency orders. See Supreme Court Order Declaring Statewide Judicial Emergency (Mar. 14,

1 Dyer initially filed this application in the Supreme Court, which transferred the matter to this Court. 2 Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963).

2020), as extended on April 6, May 11, and June 12, 2020, and as extended in part on July 10, 2020, available at www.gasupreme.us. The application is hereby DENIED in part as to the trial court’s July 17, 2020 order denying Dyer’s motion to set aside his judgment of conviction. The application is hereby GRANTED in part only as to the trial court’s July 17, 2020 order denying Dyer’s second motion for an out-of-time appeal. See OCGA § 5- 6-35 (j) (providing that an appellate court shall grant a timely application for discretionary review if the order sought to be appealed is directly appealable); English v. State, 307 Ga. App. 544, 545-547 (1) & n. 4 (705 SE2d 667) (2010) (a defendant who enters a guilty plea may be entitled to an out-of-time appeal, and “[t]he denial of a motion for an out-of-time appeal is directly appealable when the criminal conviction at issue has not been the subject of direct appeal”). Dyer shall have ten days from the date of this order to file a notice of appeal in the trial court referencing the July 17, 2020 order denying his second motion for an out-of-time appeal. See OCGA § 5-6-35 (g). If Dyer already has filed a notice of appeal in the trial court as to that order, then he need not file a second notice. The clerk of the trial court is DIRECTED to include a copy of this order in the record transmitted to the Court of Appeals.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 10/28/2020 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.