EDWARD BARBER v. LAWRENCE WHITTINGTON ( 2022 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
February 07, 2022
The Court of Appeals hereby passes the following order:
A22A0810. EDWARD BARBER v. LAWRENCE WHITTINGTON et al.
On December 22, 2021, we granted prisoner Edward Barber’s pro se
application for discretionary appeal. See Case No. A22D0170. In our order, we
directed Barber to file his notice of appeal within ten days. On January 6, 2022, the
notice of appeal was filed in superior court.
OCGA § 5-6-35 (g) imposes a mandatory obligation on an appellant to file a
notice of appeal within ten days of the granting of a discretionary appeal. We note
that Barber’s notice of appeal is dated December 29, 2021. But this notice was not
entered by the trial court until eight days later on January 6, 2022. The latter date is
the filing date. See Wal- Mart Stores v. Curry, 206 Ga. App. 775, 776 (426 SE2d 581)
(1992) (“The entry of filing by the clerk is the best evidence of the date of filing and
is presumed to be correct until the contrary is shown.”). While we are sympathetic to
Barber’s dependence upon prison officials to handle legal mail promptly, “the proper
and timely filing of a notice of appeal is an absolute requirement to confer
jurisdiction upon the appellate court.” Davis v. State, 330 Ga. App. 711, 711 (769
SE2d 133) (2015) (punctuation omitted; emphasis in original).
Accordingly, we lack jurisdiction to consider this appeal, which is hereby
DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
02/07/2022
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.