Kendrick D. Heath v. State ( 2022 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 05, 2022
The Court of Appeals hereby passes the following order:
A22A1352. KENDRICK D. HEATH v. THE STATE.
After a jury trial, Kendrick Heath was convicted of burglary and other offenses.
He filed a motion for new trial, then appealed his convictions and the denial of his
motion for new trial. This Court affirmed the judgment in an unpublished opinion.
Case No. A16A1839 (Dec. 6, 2016). Heath later filed an extraordinary motion for
new trial, which the trial court also denied. We dismissed Heath’s direct appeal from
that order because he failed to follow the discretionary appeals procedure. Case No.
A19A2163 (June 26, 2019).1 Heath thereafter filed another extraordinary motion for
new trial, which the trial court denied. He filed this direct appeal from that order.
As stated in our dismissal order in Case No. A19A2163, an order denying an
extraordinary motion for new trial must be appealed by discretionary application. See
OCGA § 5-6-35 (a) (7); Balkcom v. State, 227 Ga. App. 327, 329 (489 SE2d 129)
(1997). Compliance with the discretionary appeals procedure is jurisdictional and this
Court cannot accept an appeal not made in compliance therewith. Boyle v. State, 190
Ga. App. 734, 734 (380 SE2d 57) (1989). Thus, Heath’s failure to follow the
discretionary appeals procedure in this case deprives us of jurisdiction over this direct
appeal. See id. In addition, Heath’s current appeal is barred because the issues he
1
Heath also filed a motion to correct an illegal sentence, which the trial court
denied. This Court dismissed his appeal from that ruling because he failed to raise a
colorable void sentence claim. Case No. A20A1965 (Aug. 24, 2020).
raises have or could have been litigated in a prior appeal.2 See Echols v. State, 243
Ga. App. 775, 776 (534 SE2d 464) (2000) (“It is axiomatic that the same issue cannot
be relitigated ad infinitum. The same is true of appeals of the same issue on the same
grounds.”) (punctuation omitted); Jackson v. State, 273 Ga. 320, 320 (540 SE2d 612)
(2001) (a party “is not entitled to another bite at the apple by way of a second
appeal”); Ross v. State, 310 Ga. App. 326, 327 (713 SE2d 438) (2011) (dismissal of
previous appeal constitutes binding law of the case).
Accordingly, this appeal is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/05/2022
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
Although Heath cited newly-discovered evidence as the basis for the
extraordinary motion for new trial at issue in this appeal (which motion he filed in
2021), he stated that the new evidence was discovered during a motion hearing in
November 2015. Heath filed an extraordinary motion for new trial in 2019, and we
dismissed his appeal from the denial of that motion in Case No. A19A2163.