Calvin Smith v. State ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
March 22, 2018
The Court of Appeals hereby passes the following order:
A18A1314. CALVIN SMITH v. THE STATE.
In 2011, Calvin Smith pled guilty to aggravated battery and kidnapping. In
2016, he was granted habeas relief, after which the trial court granted his motion to
withdraw his guilty pleas. In August 2017, the trial court entered an order denying
several pretrial motions filed by Smith, including motions in which he raised double
jeopardy and statutory speedy trial claims. Later that month, Smith filed a direct appeal
from that order. That appeal has been docketed in this Court as Case No. A18A0464.
In December 2017, Smith filed a “Motion to Dismiss for Violation of
Defendant’s Privileged Legal Mail Rights (Under Federal Law) and Obstruction.” The
trial court denied Smith’s motion in an order entered on January 8, 2018, and Smith
filed this direct appeal on February 8, 2018.1 We lack jurisdiction for two reasons.
First, because this action remains pending before the trial court, Smith was
required to use the interlocutory appeal procedures – including obtaining a certificate
of immediate review from the trial court – to appeal the order denying his motion to
dismiss. See OCGA § 5-6-34 (b); Crane v. State, 281 Ga. 635, 635-637 (641 SE2d 795)
(2007); Boyd v. State, 191 Ga. App. 435, 435 (383 SE2d 906) (1989). Smith’s failure
to do so deprives us of jurisdiction over this appeal. See Crane, 281 Ga. at 635-637;
Boyd, 191 Ga. App. at 435.
1
Smith’s notice of appeal is dated February 2, 2018, but was not filed in the trial
court until February 8. Smith subsequently filed a request to “terminate/cancel” his
notice of appeal in the trial court. He also filed a motion to withdraw his appeal in this
Court, which we denied on March 15, 2018.
Second, even if Smith had a right of direct appeal here, this appeal is untimely.
A notice of appeal must be filed within 30 days of entry of the trial court 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. See Rowland v. State,
264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Smith’s notice of appeal was untimely
filed 31 days after the trial court entered its order denying his motion to dismiss.
For each of the above reasons, this appeal is hereby DISMISSED for lack of
jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
03/22/2018
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Wi tness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.