Howard W. Clyde, Jr. v. State ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 20, 2018
The Court of Appeals hereby passes the following order:
A19A0348. HOWARD W. CLYDE, JR. v. THE STATE.
In 2009, Howard W. Clyde, Jr., pleaded guilty to terroristic threats and acts and
obstruction of an officer, and he received a sentence that included probation. In 2017,
the trial court revoked Clyde’s probation after he stipulated that he had committed a
new felony offense. Clyde filed a “Motion to Correct a Clerical Error,” arguing that
the revocation order was void because the State had subsequently dead docketed the
related criminal charges against him. On June 29, 2018, the trial court entered an
order denying Clyde’s motion, and on August 13, 2018, Clyde filed a notice of appeal
to this Court. We lack jurisdiction for two reasons.
First, an application for discretionary appeal is required to appeal orders
revoking probation. OCGA § 5-6-35 (a) (5); see Todd v. State, 236 Ga. App. 757, 758
(513 SE2d 287) (1999) (holding that where the underlying subject matter is probation
revocation, the discretionary appeal procedure applies); accord White v. State, 233
Ga. App. 873, 874 (505 SE2d 228) (1998). The underlying subject matter of Clyde’s
“Motion to Correct a Clerical Error” was the revocation of his probation. Thus, a
discretionary application was required here.
Second, even if Clyde had a right of direct appeal, his notice of appeal was not
timely filed. A notice of appeal must be filed within 30 days of entry of the 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. Rowland v.
State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Clyde’s notice of appeal, filed 45
days after entry of the order denying his “Motion to Correct a Clerical Error,” was
untimely.
For these reasons, we lack jurisdiction over this appeal, which is hereby
DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
09/20/2018
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.