Christopher Bowman v. State ( 2020 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 30, 2020
The Court of Appeals hereby passes the following order:
A21D0110. CHRISTOPHER BOWMAN v. THE STATE.
In 2018, Christopher Bowman pled guilty to possession with intent to distribute
marijuana, possession of a controlled substance, and driving with a defective taillight.
In lieu of sentencing, the trial court allowed Bowman to participate in “drug court”
pursuant to a drug court contract. See OCGA §§ 15-1-15 & 16-13-2. In December
2019, Bowman was arrested on a new charge of possession with intent to distribute
marijuana. The trial court held a hearing to determine whether Bowman should be
terminated from drug court based on this new offense, and the court found that
Bowman did commit the new offense and should be terminated from drug court. On
October 2, 2020, the trial court issued a written judgment of conviction and sentence
for the offenses which Bowman previously pled guilty to. On October 5, 2020, the
trial court issued an order terminating Bowman from drug court. On November 5,
2020, Bowman filed this application for discretionary review, challenging aspects of
the decision to terminate him from drug court and the sentence that was imposed
based upon such termination. See Andrews v. State, 276 Ga. App. 428, 430-431 (1)
(623 SE2d 427) (2005) (when a defendant is adjudicated guilty and sentenced after
the trial court finds that he violated a drug court contract and revokes his probationary
status, he must file an application for discretionary appeal pursuant to OCGA § 5-6-
35 (a) (5)).
The State has filed a motion to dismiss the application, arguing that Bowman’s
challenge to the October 5, 2020 order terminating him from drug court is moot
because he did not timely seek appellate review of his October 2, 2020 judgment of
conviction and sentence, and in light of that judgment he is ineligible for participation
in drug court. We are not persuaded that the application is moot, because in his
application Bowman challenges his judgment of conviction and sentence — albeit in
an untimely manner — and because the trial court first found that Bowman should be
terminated from drug court before it issued the judgment of conviction, although the
termination order was formally issued after the judgment. Accordingly, the motion
to dismiss is hereby DENIED.
However, we lack jurisdiction because Bowman’s application is untimely. To
be timely, an application must be filed within 30 days of entry of the order or
judgment to be appealed. See OCGA § 5-6-35 (d). Here, Bowman filed his
application 31 days after entry of the October 5, 2020 order terminating him from
drug court, and 34 days after entry of the October 2, 2020 judgment of conviction.
His application is therefore untimely and subject to dismissal. See Crosson v.
Conway, 291 Ga. 220, 220 (1) (728 SE2d 617) (2012); see also Boyle v. State, 190
Ga. App. 734, 734 (380 SE2d 57) (1989) (“The requirements of OCGA § 5-6-35 are
jurisdictional and this [C]ourt cannot accept an appeal not made in compliance
therewith.”). Accordingly, this application is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
11/30/2020
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.