Joseph A. Herndon v. State ( 2014 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 28, 2014
The Court of Appeals hereby passes the following order:
A15D0079. JOSEPH A. HERNDON v. THE STATE.
On July 15, 2014, the trial court entered an order denying Joseph Herndon’s
petition to proceed as a pauper to appeal from the denial of his motion to modify
sentence.1 Herndon filed a motion for reconsideration, which the trial court denied on
August 13, 2014. Herndon filed this application for discretionary appeal on
September 30, 2014. We lack jurisdiction.
Herndon’s application for discretionary appeal was docketed in this Court 77
days after the entry of the order he seeks to appeal. An application for discretionary
appeal must be filed within 30 days of the order on appeal. OCGA § 5-6-35 (d). The
requirements of OCGA § 5-6-35 are jurisdictional, and this Court cannot accept an
application for appeal not made in compliance therewith. See Boyle v. State, 190 Ga.
App. 734 (380 SE2d 57) (1989). Therefore, Herndon’s application is untimely as to
1
Joseph Herndon was convicted of criminal attempt to commit armed robbery,
aggravated assault, possession of a firearm during the commission of a crime, and
possession of a firearm by a convicted felon. In Herndon v. State, 229 Ga. App. 457(494 SE2d 262) (1997), we affirmed Herndon’s convictions, except as to aggravated
assault, and remanded the case for resentencing and a hearing on Herndon’s claims
of ineffective assistance of counsel. In Herndon v. State, 235 Ga. App. 258 (509 SE2d
142) (1998), we affirmed the trial court’s denial of Herndon’s motion for new trial
alleging ineffective assistance. After the trial court denied motions for out of time
appeal filed by Herndon in 2009 and 2010, Herndon filed a motion to modify his
sentence, which the trial court denied on June 17, 2014.
the order denying his request to proceed as a pauper.2 Herndon sought reconsideration
of the court’s July 15, 2014, order, but the denial of a motion for reconsideration is
not directly appealable. Bell v. Cohran, 244 Ga. App. 510, 511 (536 SE2d 187)
(2000). And the filing of such a motion does not extend the time for appealing the
underlying judgment – here, the order denying the request to proceed in forma
pauperis. Accordingly, we lack jurisdiction to consider this application, which is
hereby DISMISSED.
Court of Appeals of the State of Georgia
10/28/2014
Clerk’s Office, Atlanta,____________________
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.
2
Herndon argues in his application that he initially filed his application for
discretionary appeal in the superior court on September 5, 2014, and that the trial
should have instructed him to file it in this Court. Even if we were to accept
Herndon’s argument, his application is untimely nonetheless.