Kevin Upkins v. State ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
January 05, 2021
The Court of Appeals hereby passes the following order:
A21D0148. KEVIN UPKINS v. THE STATE.
A jury found Kevin Upkins guilty of armed robbery, and his conviction was
affirmed in an unpublished opinion. See Upkins v. State, Case No. A14A1952,
(decided March 25, 2015). Since then, Upkins has filed several post-conviction
motions seeking to challenge his conviction.1 Recently, Upkins filed an extraordinary
motion for new trial. The trial court denied the motion on October 27, 2020, and
Upkins filed a direct appeal. We dismissed the appeal based on Upkins’ failure to file
a discretionary application. See Upkins v. State, Case No. A21A0685 (decided Dec.
1, 2020). On December 7, 2020, Upkins filed an application for discretionary appeal
from the October 27, 2020 order. The State has filed moved to dismiss the
application.
An application for discretionary review must be filed within 30 days of entry
of the judgment or trial court order sought 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 not made in compliance therewith. See Boyle v. State, 190 Ga.
App. 734, 734 (380 SE2d 57) (1989). Upkins filed this application 41 days after entry
of the order he seeks to appeal. We thus lack jurisdiction to consider the merits of this
1
Upkins has filed other actions in this Court, including: Upkins v. State, Case
No. A19A1566, (decided March 18, 2019) (dismissing direct appeal from the denial
of an extraordinary motion for new trial); and Upkins v. State, Case No. A19D0418,
(decided May 1, 2019) (denying discretionary review of trial court’s order that denied
a “motion for de novo hearing” in which defendant argued his conviction was void).
application. Accordingly, the State’s motion to dismiss is hereby GRANTED, and this
application is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
01/05/2021
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.