Michael D. Dyer v. State ( 2020 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 21, 2020
The Court of Appeals hereby passes the following order:
A21D0061. MICHAEL D. DYER v. THE STATE.
Michael D. Dyer has filed numerous applications in this Court based on his
guilty plea to two counts of aggravated child molestation in 2007.1 In his latest
attempt to overturn his convictions, Dyer filed this pro se application for discretionary
review on September 1, 2020, seeking to appeal from two orders entered on July 17,
2020: one denied his pro se motion for an out-of-time appeal, and the other dismissed
his pro se motion to set aside based on OCGA § 9-11-60. We lack jurisdiction.
First, we lack jurisdiction because, pretermitting whether Dyer has a right to
directly appeal the trial court’s order denying his motion for an out-of-time appeal,2
his application is untimely. To be timely, an application must be filed within 30 days
of entry of the order to be appealed. See OCGA § 5-6-35 (d). Here, Dyer filed his
application 46 days after entry of the orders he seeks to appeal. His application is
therefore untimely and subject to dismissal. See Crosson v. Conway, 291 Ga. 220,
1
See Case Nos. A14D0474 (dismissed Aug. 19, 2014); A16D0422 (denied July
14, 2016); and A19D0054 (denied Sept. 6, 2018).
2
The denial of a motion for an out-of-time appeal is directly appealable when
the conviction at issue has not been the subject of a direct appeal. See English v.
State, 307 Ga. App. 544, 545 n.4 (705 SE2d 667) (2010); Lunsford v. State, 237 Ga.
App. 696, 696 (515 SE2d 198) (1999). Generally, if a party applies for discretionary
review of a directly appealable order, this Court grants the application under OCGA
§ 5-6-35 (j). To fall within this general rule, however, the application must be filed
within 30 days of entry of the order to be appealed. See OCGA § 5-6-35 (d); Hill v.
State, 204 Ga. App. 582, 582 (420 SE2d 393) (1992).
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.”).
Second, “[i]t has been held many times that a motion to set aside a judgment
is inappropriate in a criminal case.” Lacey v. State, 253 Ga. 711, 711 (324 SE2d 471)
(1985). Regardless of how it is styled, a motion seeking to challenge an allegedly
invalid or void judgment of conviction “is not one of the established procedures for
challenging the validity of a judgment in a criminal case.” Roberts v. State, 286 Ga.
532, 532 (690 SE2d 150) (2010). Because Dyer is not authorized to collaterally attack
his conviction in this manner, there is nothing for this Court to review and an
application or direct appeal is subject to dismissal. See id.For these reasons, this application is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
09/21/2020
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.