Lamar Johnson v. State ( 2017 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 20, 2017
The Court of Appeals hereby passes the following order:
A17D0491. LAMAR JOHNSON v. THE STATE.
Lamar Johnson was convicted of armed robbery, hijacking a motor vehicle,
kidnapping, false imprisonment, and possession of a firearm during the commission
of a crime. On appeal, this Court reversed Johnson’s conviction for possession of a
firearm during the commission of a crime, but affirmed the remainder of his
convictions. See Johnson v. State, 309 Ga. App. 655 (710 SE2d 857) (2011). In
2016, he filed a motion to vacate and modify sentence, and a motion to vacate void
sentence. The trial court denied the motions on January 24, 2017. Johnson then filed,
in the trial court, a motion for an extension of time to appeal. On May 2, 2017, the
trial court granted the motion, pursuant to OCGA § 5-6-39, and gave Johnson until
June 1, 2017, to file a “notice of appeal[].”1 Johnson filed this application for
discretionary review on June 1, 2017, 128 days after entry of the order denying his
motions seeking relief from his sentence.
An application for discretionary appeal must be filed within 30 days of the
entry of the order or judgment to be appealed. See 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 Boyle v. State, 190 Ga.
1A direct appeal may lie from an order denying or dismissing a motion to vacate a
void sentence, but only if the defendant raises a colorable claim that the sentence is, in fact,
void. See Harper v. State, 286 Ga. 216, 217 n.1 (686 SE2d 786) (2009); Burg v. State, 297
Ga. App. 118, 119 (676 SE2d 465) (2009). A sentence is void only if it imposes
punishment that the law does not allow. Crumbley v. State, 261 Ga. 610, 611 (1) (409
SE2d 517) (1991).
App. 734 (380 SE2d 57) (1989). Although the trial court purported to grant Johnson
an extension of time to file an application, it lacked authority to do so. See Gable v.
State, 290 Ga. 81, 85 (2) (a) (720 SE2d 170) (2011) (“Because a discretionary
application must be filed only in an appellate court, see OCGA § 5-6-35 (d), a trial
court may not grant an extension of the time to file the application pursuant to OCGA
§ 5-6-39.”). Instead, an applicant must request an extension from this Court, within
the original 30-day filing period. Id.; see also Court of Appeals Rule 31 (i).
Because Johnson did not make a timely request for an extension before this
Court, we have no basis for excusing his failure to comply with the 30-day deadline
set forth in OCGA § 5-6-35 (d). Accordingly, this application is hereby DISMISSED
for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
06/20/2017
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.