Robert Ray Whipkey v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
January 02, 2019
The Court of Appeals hereby passes the following order:
A19A0897. ROBERT RAY WHIPKEY v. THE STATE.
In September 2010, Robert Ray Whipkey pleaded guilty to theft by taking and
three drug possession charges. The trial court imposed a total three-year sentence,
which Whipkey was permitted to serve on probation with adjudication of guilt
deferred under the conditional-discharge statute, OCGA § 16-13-2. In May 2014, the
trial court entered an order discharging and acquitting Whipkey of all charges. On
October 29, 2014, the trial court declared void and vacated Whipkey’s discharge and
acquittal,1 adjudicated him guilty, and reimposed the original sentence. Whipkey then
filed the instant notice of appeal on November 11, 2014. We, however, lack
jurisdiction.
An appeal from the revocation of conditional-discharge probation and
adjudication of guilt under OCGA § 16-13-2 must be initiated by an application for
discretionary review under OCGA § 5-6-35 (a) (5). See Andrews v. State, 276 Ga. App.
428, 430-431 (1) (623 SE2d 247) (2005). “Compliance with the discretionary appeals
procedure is jurisdictional.” Smoak v. Dept. of Human Resources, 221 Ga. App. 257,
257 (471 SE2d 60) (1996).
1
The trial court found Whipkey ineligible for consideration under the
conditional-discharge statute, OCGA § 16-13-2, because of a prior drug conviction in
Alabama that he had failed to disclose to the court during his plea proceedings.
Whipkey’s failure to comply with the applicable appellate procedure deprives
us of jurisdiction over his appeal, which is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
01/02/2019
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.