Dwayne Anderson v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
February 06, 2019
The Court of Appeals hereby passes the following order:
A19D0277. DWAYNE ANDERSON v. THE STATE.
In 2010, Dwayne Anderson pleaded guilty to escape, and the court sentenced
him to ten years of probation. In 2018, the trial court revoked four years of
Anderson’s probation. Thereafter, Anderson filed a “motion to modify sentence,”
which the trial court denied on September 17, 2018. Anderson filed a direct appeal,
but his appeal was dismissed because he failed to file an application for discretionary
review. See Case No. A19A0645 (dismissed Dec. 12, 2018); see also OCGA § 5-6-35
(a) (5) (requiring an application to appeal from an order revoking probation); White
v. State, 233 Ga. App. 873, 874 (505 SE2d 228) (1998). Anderson then filed on
January 8, 2019, this discretionary application, seeking to appeal the same order.
As an initial matter, “a party is not entitled to a second appeal from a single
order.” Houston County v. Harrell, 287 Ga. 162, 163 (695 SE2d 29) (2010).
Moreover, an application for discretionary appeal must be filed within 30 days of
entry of the order or judgment 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. Boyle v. State, 190 Ga. App. 734, 734 (380
SE2d 57) (1989). Because Anderson filed this application 113 days after entry of the
challenged order, it is also untimely.
For these reasons, Anderson’s application for discretionary appeal is hereby
DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
02/06/2019
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.