Kevin Vernard Smith v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 07, 2019
The Court of Appeals hereby passes the following order:
A19A2325. KEVIN VERNARD SMITH v. THE STATE.
Kevin Vernard Smith filed this direct appeal from the trial court’s order
denying his “Request for Sentence Clarification.” We, however, lack jurisdiction.
The record shows that, on October 29, 2013, Smith pled guilty to theft by
shoplifting, possession of oxycodone, and obstruction. The trial court sentenced him
as a recidivist to 10 years for theft by shoplifting, with two years to serve in
confinement and the remainder on probation. Smith was sentenced to three years of
probation for the possession charge and five years of probation for the obstruction
charge, concurrent to the shoplifting sentence. In August 2018, the trial court revoked
two years of Smith’s probation based upon his violations of special conditions of
probation.
In January 2019, Smith filed a “Request for Clarification of Sentence.”
Although Smith’s argument is not entirely clear, he seems to argue that he was
improperly sentenced as a recidivist following the revocation of his probation.1 Smith
requested that the trial court correct or clarify its sentence. The trial court construed
the motion as one for sentence modification, which the court denied. Smith filed a
notice of appeal from this ruling.
1
It appears that Smith misconstrues the nature of probation revocation. The
trial court does not enter a new sentence following revocation of probation. Rather,
the probated portion of the original sentence is revoked. Under OCGA § 42-8-34.1
(e), the trial court was authorized to revoke the balance of Smith’s probation for the
violation of a special condition.
Although Smith purports to challenge the denial of his motion for clarification
of his post-revocation sentence, the underlying subject matter is the revocation of
probation. See Todd v. State, 236 Ga. App. 757, 757 (513 SE2d 287) (1999). An
appeal in such a proceeding must be initiated by filing an application for discretionary
review. OCGA § 5-6-35 (a) (5), (b). “Compliance with the discretionary appeals
procedure is jurisdictional.” Smoak v. Dept. of Human Resources, 221 Ga. App. 257,
257 (471 SE2d 60) (1996). Consequently, Smith’s failure to file a discretionary
application deprives us of jurisdiction over this direct appeal, which is hereby
DISMISSED. See Todd, supra.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/07/2019
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.