Decarlos Bobby Butler v. State ( 2020 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
July 01, 2020
The Court of Appeals hereby passes the following order:
A20A1916. DECARLOS BOBBY BUTLER v. THE STATE.
De’Carlos Bobby Butler pled guilty to aggravated assault in January 2011. He
received first offender treatment and was sentenced to 8 years, with the first 18
months to be served in confinement and the remainder to be served on probation. He
was also ordered to pay restitution to the victim. In 2013, the State petitioned to
revoke Butler’s probation based on non-compliance with court directives. The trial
court agreed to maintain Butler’s first offender status, but ordered him to spend
weekends in confinement over the next six months. In April 2014, the State again
moved to revoke Butler’s probation based on new charges committed on two separate
dates for family violence-battery, felony terroristic threats, misdemeanor obstruction
of a law enforcement officer, and criminal trespass. The trial court revoked Butler’s
first offender status and re-sentenced him to 20 years, with 8 years to be served in
confinement and the remainder to be served on probation. Butler subsequently filed
numerous pro se motions and habeas petitions in which he sought reconsideration and
modification of his sentence, and the trial court on more than one occasion modified
his sentence.
In 2016, Butler filed a motion for sentence modification and a motion to correct
a void sentence. The trial court denied these motions on June 20, 2019, and, on April
17, 2020, Butler filed a pro se notice of appeal, which he amended at least three
times. In his notices of appeal, Butler seeks to appeal the trial court’s June 20, 2019
order, and he mentions a February 2020 arrest for a probation violation and an April
2020 revocation hearing. We lack jurisdiction for two reasons.
First, “[i]n determining the proper procedure to follow in pursuing an appeal,
the underlying subject matter generally controls over the relief sought.” Self v.
Bayneum, 265 Ga. 14, 14-15 (453 SE2d 27) (1995). Because the underlying subject
matter of this appeal is the revocation of Butler’s probation, he was required to file
an application for discretionary appeal in order to appeal. See OCGA § 5-6-35 (a) (5),
(b); Todd v. State, 236 Ga. App. 757, 758 (513 SE2d 287) (1999); Zamora v. State,
226 Ga. App. 105, 105 (485 SE2d 214) (1997) (the discretionary appeal procedure
of OCGA § 5-6-35 (a) (5) is applicable to the revocation of “first offender”
probation). “Compliance with the discretionary appeals procedure is jurisdictional.”
Smoak v. Dept. of Human Resources, 221 Ga. App. 257, 257 (471 SE2d 60) (1996).
Butler’s failure to follow the proper procedure deprives us of jurisdiction over this
direct appeal. See White v. State, 233 Ga. App. 873, 874 (505 SE2d 228) (1998).
Although at least one of Butler’s amended notices of appeal identified OCGA
§ 5-6-35 (a) (5) as the basis for his appeal, Butler filed the document in the trial court
(which properly construed it as a notice of appeal), rather than this Court. An
application for discretionary review must be filed in the appropriate appellate court.
OCGA § 5-6-35 (d); compare OCGA § 5-6-37 (a notice of appeal must be filed “with
the clerk of the court wherein the case was determined”).
Second, Butler’s notice of appeal is untimely and even if Butler had filed a
discretionary application, we would have dismissed it as untimely. Both an
application for discretionary appeal and a direct appeal must be filed within 30 days
of entry of the order or judgment to be appealed. See OCGA §§ 5-6-35 (d), 5-6-38 (a).
The requirements of OCGA §§ 5-6-35 and 5-6-38 are jurisdictional, and this Court
lacks jurisdiction to consider an untimely application or an untimely appeal. See
Legare v. State, 269 Ga. 468, 469 (499 SE2d 640) (1998); Boyle v. State, 190 Ga.
App. 734, 734 (380 SE2d 57) (1989). Here, Butler filed his notice of appeal on April
17, 2020. His effort to appeal the trial court’s June 20, 2019 order is thus untimely.
Although Butler mentions he is attempting to appeal from a February 2020 arrest for
a probation violation and an April 2020 revocation hearing, it does not appear from
the record that an order has been entered regarding any motions filed regarding these
proceedings. Consequently, Butler’s appeal is premature as to those issues because,
given the apparent absence of a trial court order, we have nothing to review. See
Amica v. State, 307 Ga. App. 276, 282 (2) (704 SE2d 831) (2010); see also Ward v.
State, 299 Ga. App. 826, 827 (683 SE2d 894) (2009) (this Court is for the correction
of errors and will not consider issues on which the trial court has not ruled).
For each of the above reasons, this direct appeal is hereby DISMISSED for lack
of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
07/01/2020
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.