In Re Mitchell Ludy

Court of Appeals of the State of Georgia

ATLANTA,____________________ November 08, 2021

The Court of Appeals hereby passes the following order:

A21A1560. IN RE MITCHELL LUDY.

Mitchell Ludy currently is serving a lengthy prison sentence following 2006 convictions for murder and other offenses. See Ludy v. State, 283 Ga. 322, 322 & n. 1 (658 SE2d 745) (2008). In August 2020, Ludy filed a petition to change his name. In an order entered on March 22, 2021, the trial court dismissed Ludy’s petition without prejudice after he failed to appear for a scheduled hearing. Ludy then filed this timely direct appeal. We lack jurisdiction. Under the Prison Litigation Reform Act of 1996, an appeal in a civil action filed by a prisoner must be initiated by filing an application for discretionary review. See OCGA § 42-12-8, cross-referencing OCGA § 5-6-35; Jones v. Townsend, 267 Ga. 489, 490 (480 SE2d 24) (1997). “Compliance with the discretionary appeals procedure is jurisdictional.” Smoak v. Dept. of Human Resources, 221 Ga. App. 257, 257 (471 SE2d 60) (1996). Because Ludy was incarcerated when he initiated this civil action, his failure to comply with the discretionary review procedure deprives us of jurisdiction over this direct appeal. See Jones, 267 Ga. at 490-491. We note that, on June 30, 2021 (after this appeal was docketed), Ludy filed, in this Court, a document entitled “Application for Appeal.” Because that document listed the docket number of this direct appeal, it was docketed as Ludy’s initial brief in this appeal. Nevertheless, even if we were to construe that document as an application for discretionary review, it was filed more than three months after entry of the order sought to be appealed and thus would be subject to dismissal as untimely. See OCGA § 5-6-35 (d) (an application for discretionary review must be filed within 30 days of entry of the judgment or trial court order sought 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). For each of these reasons, we lack jurisdiction over this appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 11/08/2021 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.