Kamaal Akeem Lewis v. State ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 20, 2018
The Court of Appeals hereby passes the following order:
A19D0081. KAMAAL AKEEM LEWIS v. THE STATE.
Under indictment for cocaine trafficking and possession of marijuana with intent
to distribute, Kamaal Akeem Lewis filed a motion to suppress the drugs seized from
him following a traffic stop. On June 11, 2018, the trial court denied his motion.
Thereafter, Lewis requested a certificate of immediate review, but the trial court denied
his request. Nonetheless, on July 19, 2018, Lewis filed an application for discretionary
review in the Supreme Court of Georgia, asserting that it had jurisdiction to consider
the merits of his application in accordance with Waldrip v. Head, 272 Ga. 572 (532
SE2d 380) (2000). The Supreme Court, however, determined that the application
presented no basis for its jurisdiction and transferred the case to this Court, noting that
“Waldrip involved a habeas proceeding and does not stand for the proposition that
[the Supreme Court] has subject matter jurisdiction whenever a trial court denies a
certificate of immediate review.” See Case No. S18D1568 (transferred August 14,
2018). We also lack jurisdiction.
To be timely, an application for discretionary appeal must be filed within 30
days of the entry of the order or judgment to be appealed. See OCGA § 5-6-35 (d).
The requirements of OCGA § 5-6-35 are jurisdictional, and this Court cannot accept
an application for appeal not made in compliance therewith. See Boyle v. State, 190
Ga. App. 734 (380 SE2d 57) (1989). Because Lewis did not file his application in the
Supreme Court until 38 days after the entry of the order he seeks to appeal, his appeal
is untimely.
Even if Lewis’s application was timely, his failure to comply with the
interlocutory-appeal procedure of OCGA § 5-6-34 (b) by obtaining a certificate of
immediate review also deprives this Court of jurisdiction. This Court will “not review
the unfettered discretion vested in the trial court in granting or refusing a certificate for
immediate review of interlocutory rulings.” B & D Fabricators v. D.H. Blair Inv.
Banking Corp., 220 Ga. App. 373, 375 (3) (469 SE2d 683) (1996). As set forth in
Waldrip, in rare cases, an appellate court can exercise its discretion to review an
interlocutory order without a certificate of immediate review, but only in “exceptional
cases that involve an issue of great concern, gravity, and importance to the public and
no timely opportunity for appellate review.” Waldrip, 272 Ga. at 575, 577 (1). And this
is not one of the rare cases in which ignoring the certificate requirement is warranted.
For these reasons, this application is hereby DISMISSED for lack of
jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
09/20/2018
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.