Moulder v. Reilly

McMURRAY, Presiding Judge.

Robert K. Moulder, Sr. and Robert K. Moulder, Jr., both of whom are prison inmates, filed this civil action in Gilmer County Superior Court seeking redress for alleged violations of their civil rights by various public officials and appellants’ former attorney. In orders entered October 4 and 14, 1996, the superior court dismissed the defendants from the suit on various grounds. On November 1, 1996, the appellants filed a notice of appeal. Held:

Generally, an order granting a motion to dismiss is directly appealable. However, the appellants brought this civil action and the appeal therefrom while prison inmates. The Prison Litigation Reform Act, therefore, applies. OCGA § 42-12-3 (1). The Act provides that “[a]ppeals of all actions filed by prisoners shall be as provided in Code Section 5-6-35,” that is, by application requesting a discretionary appeal. OCGA § 42-12-8.

In this case, the appellants failed to follow the discretionary appeal procedure required by law. “The requirements of OCGA § 5-6-35 are jurisdictional and this court cannot accept an appeal not made in compliance therewith.” Boyle v. State of Ga., 190 Ga. App. 734 (380 SE2d 57) (1989). Accordingly, this direct appeal must be dismissed.

Appeal dismissed.

Beasley and Smith, JJ, concur.