Dewayne Thomas v. State ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
May 27, 2021
The Court of Appeals hereby passes the following order:
A21D0334. DEWAYNE THOMAS v. THE STATE.
In 2013, Dewayne Thomas pled guilty to two drug offenses and was sentenced
as a first offender to ten years, to serve five in confinement and the remainder on
probation. In 2019, the trial court revoked Thomas’s probation and first-offender
status upon finding that he had committed new offenses and violated certain
conditions of probation. The court adjudicated him guilty of the 2013 offenses and
sentenced him to a total of 40 years in confinement.
In November 2020, Thomas filed a motion to correct his sentence, arguing that
the trial court had erred by imposing a more severe sentence upon revoking his first-
offender probation. The trial court denied the motion, and Thomas filed a direct
appeal to this Court. We dismissed the appeal for lack of jurisdiction because Thomas
was required to file a discretionary application to obtain review of an order revoking
first-offender probation. See Case No. A21A0807 (Jan. 14, 2021).
Back in the trial court, Thomas filed a second motion to correct his sentence,
again arguing that the court had erred by imposing a more severe sentence upon
revoking his first-offender probation. On March 23, 2021, the trial court entered an
order finding that Thomas’s second motion was identical to the first and therefore was
moot. On May 3, 2021, Thomas filed this application for discretionary appeal. We
lack jurisdiction because the application was not timely filed.
An application for discretionary appeal must be filed within 30 days of entry
of the order to be appealed. 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 Crosson v. Conway, 291 Ga. 220, 220 (1) (728 SE2d 617)
(2012); Boyle v. State, 190 Ga. App. 734, 734 (380 SE2d 57) (1989). Thomas filed
this application 41 days after entry of the order he seeks to appeal. Accordingly, the
application is untimely and is hereby DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
05/27/2021
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.