Antonio Fair v. State ( 2020 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
January 17, 2020
The Court of Appeals hereby passes the following order:
A20A1077. ANTONIO FAIR v. THE STATE.
In 2012, Antonio Fair pleaded guilty to burglary and theft by receiving stolen
property. He was sentenced to nine years, to be served on probation. In January 2019,
the trial court revoked two years of Fair’s probation. In October 2019, Fair filed an
“Out of Time Notice of Appeal” indicating his wish to appeal the revocation order to
the Supreme Court. The Supreme Court transferred the ensuing appeal here upon
finding no basis for subject matter jurisdiction there.
An application for discretionary appeal is required to appeal orders revoking
probation. OCGA § 5-6-35 (a) (5); see Todd v. State, 236 Ga. App. 757, 758 (513
SE2d 287) (1999) (holding that where the underlying subject matter is probation
revocation, the discretionary appeal procedure applies); accord White v. State, 233
Ga. App. 873, 874 (505 SE2d 228) (1998). Fair’s failure to follow the required
appellate procedure deprives us of jurisdiction. Accordingly, this appeal is hereby
DISMISSED.1
1
Even if Fair had filed a discretionary application, we would have dismissed
it as untimely. See OCGA § 5-6-35 (d) (application for discretionary appeal must be
filed within 30 days of entry of order to be appealed). In his “Out of Time Notice of
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
01/17/2020
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.
Appeal,” Fair states that his lawyer failed to inform him of his right to appeal the
revocation order. “Georgia courts may excuse compliance with a statutory
requirement for appeal only where necessary to avoid or remedy a constitutional
violation concerning the appeal.” Gable v. State, 290 Ga. 81, 85 (2) (b) (720 SE2d
170) (2011). If Fair believes that his right to seek appellate review was frustrated by
the ineffective assistance of counsel to which he was legally entitled, he may apply
to the trial court for relief as described in In the Interest of B. R. F., 299 Ga. 294 (788
SE2d 416) (2016).