Michael Lane Brewer v. J. Wade Padgett, Judge ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
April 12, 2018
The Court of Appeals hereby passes the following order:
A18A1324. MICHAEL LANE BREWER v. J. WADE PADGETT, JUDGE.
Michael Brewer currently is serving a prison sentence following his
convictions for two counts of committing an act of child exploitation through the use
of a computer or electronic device. We affirmed the denial of his motion for a new
trial on direct appeal. Brewer v. State, 328 Ga. App. 801 (762 SE2d 622) (2014).
Brewer filed this civil action in January 2017, seeking a writ of prohibition against
a superior court judge. On July 27, 2017, the trial court granted the defendant’s
motion to dismiss for lack of proper service. On September 5, 2017, Brewer filed a
notice of appeal to the Supreme Court, which transferred the appeal to this Court. We
lack jurisdiction for two reasons.
First, under the Prison Litigation Reform Act of 1996, an appeal in a civil
action filed by a prisoner must be initiated by filing an application for discretionary
review. See OCGA § 42-12-8, cross-referencing OCGA § 5-6-35; Jones v.
Townsend, 267 Ga. 489, 490 (480 SE2d 24) (1997). Because Brewer was
incarcerated when he filed this civil action, his failure to comply with the
discretionary review procedure deprives us of jurisdiction over this direct appeal. See
Jones, 267 Ga. at 490-491.
Second, even if Brewer had a right of direct appeal here, this appeal is
untimely. A notice of appeal must be filed within 30 days of entry of the trial court
order sought to be appealed. OCGA § 5-6-38 (a). The proper and timely filing of a
notice of appeal is an absolute requirement to confer jurisdiction on this Court. See
Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Brewer filed his
notice of appeal 40 days after entry of the trial court order he seeks to appeal.
For the above reasons, this appeal is hereby DISMISSED for lack of
jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
04/12/2018
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.