Travis Durham v. Gregory C. Dozier, Commissioner

Court of Appeals
of the State of Georgia
ATLANTA,____________________
July 31, 2018
The Court of Appeals hereby passes the following order:
A18A1948. TRAVIS DURHAM v. GREGORY C. DOZIER, COMMISSIONER.
Prison inmate Travis Durham filed a mandamus petition seeking credit for time
served in custody. The Department of Corrections filed a motion to dismiss with
attachments, which the trial court construed as a motion for summary judgment. On
January 4, 2018, the trial court granted the Department’s motion and denied the writ
of mandamus. Durham then filed a notice of appeal to the Georgia Supreme Court
on February 7, 2018. The Supreme Court transferred the case to this Court. See
Case No. S18A0843 (decided April 16, 2018). We, however, lack jurisdiction for
two reasons.
First, while judgments and orders granting or refusing to grant mandamus are
generally directly appealable, see OCGA § 5-6-34 (a) (7), under the Prison Litigation
Reform Act, any appeal in a civil case that was initiated by a prisoner must come by
discretionary application. See OCGA § 42-12-8; Jones v. Townsend, 267 Ga. 489,
490 (480 SE2d 24) (1997). Because Durham is incarcerated, he was required to file
an application for discretionary appeal to seek appeal of the trial court’s order.
“[C]ompliance with the discretionary appeals procedure is jurisdictional.” Fabe v.
Floyd, 199 Ga. App. 322, 332 (1) (405 SE2d 265) (1991). Durham’s failure to follow
the required appellate procedure deprives us of jurisdiction over this appeal.
Second, the appeal is untimely. A notice of appeal must be filed within 30 days
after the entry of the trial court’s order. OCGA § 5-6-38 (a). The proper and timely
filing of a notice of appeal is an absolute requirement to confer jurisdiction upon this
Court. Couch v. United Paperworkers Intl. Union, 224 Ga. App. 721 (482 SE2d 704)
(1997). Here, Durham filed his notice of appeal 34 days after the trial court’s order
was entered. For these reasons, this appeal is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
07/31/2018
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.