James Kelly Howard v. State ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
May 07, 2018
The Court of Appeals hereby passes the following order:
A18D0436. JAMES KELLY HOWARD v. THE STATE.
In 2010, James Kelly Howard was convicted of attempted murder, aggravated
assault, aggravated battery, cruelty to children in the first degree, and other offenses
stemming from his stabbing attack upon a victim and her minor daughter. We
affirmed his convictions on appeal. See Howard v. State, 318 Ga. App. 329 (733
SE2d 859) (2012). In 2016, Howard filed a pro se “Motion to Set Aside the Verdict
and Vacate a Void Judgment.” The trial court dismissed the motion, and we
dismissed Howard’s subsequent application for discretionary appeal for lack of
jurisdiction. See Howard v. State, Case No. A16D0445 (decided July 15, 2016).
Howard thereafter filed a second pro se “Motion to Set Aside a Void Judgment.” On
January 25, 2018, the trial court entered an order denying the motion. Howard filed
this application for discretionary appeal on April 20, 2018. We, however, lack
jurisdiction for several reasons.
First, to be timely, 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); Hill v. State, 204 Ga. App. 582, 582 (420 SE2d 393) (1992). 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). Howard filed this application 85 days after entry of the order he
seeks to appeal, and it is therefore untimely.
Second, the Supreme Court has made clear that a motion seeking to challenge
an allegedly invalid or void judgment of convictions “is not one of the established
procedures for challenging the validity of a judgment in a criminal case” and that an
appeal from the denial of such a motion is subject to dismissal. Roberts v. State, 286
Ga. 532 (690 SE2d 150) (2010); Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d
786) (2009). Howard is not authorized to collaterally attack his convictions in this
manner.
For these reasons, this application is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
05/07/2018
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.