Darren Petty v. State ( 2014 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 22, 2014
The Court of Appeals hereby passes the following order:
A15D0072. DARREN PETTY v. THE STATE.
On April 14, 2011, Darren Petty pled guilty to four counts of theft by receiving
and one count of making a false statement. Petty filed a notice of appeal from his
sentence on June 30, 2014. We dismissed his direct appeal because it was untimely.
See Petty v. State, A15A0073 (dismissed September 10, 2014). On August 18, 2014,
Petty filed this application for discretionary appeal in the Supreme Court, which
transferred it to us after determining that the case did not invoke the Supreme Court’s
jurisdiction. We also lack jurisdiction.
In his application, Petty appears to argue that the trial court erred in denying
his motion to withdraw his plea and his motion to vacate his sentence for lack of
jurisdiction. However, Petty has not included any motions allegedly filed by him or
any court orders addressing those motions. Accordingly, we are unable to determine
whether his application was filed within 30 days of the order(s) he challenges. See
OCGA § 5-6-35 (d) (providing that an application must be filed within 30 days of the
entry of the order); see also OCGA § 5-6-35 (c) and Court of Appeals Rule 31 (e)
(providing that an application for discretionary review must include a stamped “filed”
copy of the order being appealed). Moreover, Petty’s application is untimely as to the
only order he did include: the 2011 final disposition of his criminal case. See OCGA
§ 5-6-35 (d); Hill v. State, 204 Ga. App. 582 (420 SE2d 393) (1992) (to be timely, a
discretionary application must be filed within 30 days of entry of the order to be
appealed).
As the applicant, Petty bears the burden of establishing that his application
should be granted. See Harper v. Harper, 259 Ga. 246 (378 SE2d 673) (1989). Given
the dearth of information he provided with his application, we are unable to assume
jurisdiction. See Boyle v. State, 190 Ga. App. 734 (380 SE2d 57) (1989) (“The
requirements of [OCGA] § 5-6-35 are jurisdictional and this court cannot accept an
appeal not made in compliance therewith.”). Accordingly, this application is hereby
DISMISSED. Petty’s motion to stay is DENIED as MOOT.
Court of Appeals of the State of Georgia
10/22/2014
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.