James Dennis New v. State ( 2017 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
February 16, 2017
The Court of Appeals hereby passes the following order:
A17D0280. JAMES DENNIS NEW v. THE STATE.
On December 16, 2016, the trial court dismissed James Dennis New’s motion
to compel in this habeas corpus action on the basis that New was represented by
counsel.1 On January 25, 2017, New filed this application for discretionary appeal
seeking leave to appeal the ruling. We, however, lack jurisdiction for several reasons.
First, as noted by the trial court, a criminal defendant does not have the right
to represent himself while also being represented by an attorney. See Pless v. State,
255 Ga. App. 95, 96 (564 SE2d 508) (2002). Because New is currently represented
by counsel, his pro se filing is a nullity. See id.Second, New’s application is untimely. An application for discretionary appeal
must be filed within 30 days of the entry of the order or judgment to be appealed.
OCGA § 5-6-35 (d). The requirements of OCGA § 5-6-35 are jurisdictional, and this
Court cannot accept an application for appeal made beyond 30 days. See Boyle v.
State, 190 Ga. App. 734 (380 SE2d 57) (1989). Here, New filed his application 40
days after entry of the order he seeks to appeal.
Third, New failed to follow the requisite appellate procedure. Because the
habeas case remains pending below, the trial court’s order is not considered final and
1
As of January 1, 2017, the Court of Appeals has jurisdiction over “[a]ll cases
involving extraordinary remedies, except those cases concerning proceedings in
which a sentence of death was imposed or could be imposed and those cases
concerning the execution of a sentence of death” pursuant to the Appellate
Jurisdiction Reform Act of 2016. Ga. L. 2016, p. 883, § 3-1 [codified as OCGA § 15-
3-3.1 (a) (4)].
may be appealed only by compliance with the interlocutory appeal procedures of
OCGA § 5-6-34 (b). Although New filed a discretionary application, “[t]he
discretionary appeal statute does not excuse a party seeking appellate review of an
interlocutory order from complying with the additional requirements of OCGA § 5-6-
34 (b).” Bailey v. Bailey, 266 Ga. 832, 833 (471 SE2d 213) (1996).
For these reasons, we lack jurisdiction over this application for discretionary
appeal, which is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
02/16/2017
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.