Michael D. Dyer v. The State

Summary

The Court of Appeals of Georgia dismissed Michael D. Dyer’s discretionary-review application as untimely because it was filed 46 days after the trial court orders he sought to appeal, exceeding the 30-day period under OCGA § 5-6-35 (d). The court also held that a motion to set aside a criminal conviction is not an authorized procedure for collaterally attacking a criminal judgment.

Holdings

1. An application for discretionary review must be filed within 30 days after entry of the order to be appealed; an application filed 46 days after entry is untimely and must be dismissed.
2. A motion to set aside is not an authorized procedure for collaterally attacking the validity of a criminal judgment; an application or direct appeal presenting only such a motion is subject to dismissal.

Questions Presented

1. Whether the application for discretionary review was timely under OCGA § 5-6-35(d).
2. Whether the Court of Appeals had jurisdiction to review the denial of the motion for an out-of-time appeal when the application was filed 46 days after the challenged orders.
3. Whether a motion to set aside under OCGA § 9-11-60 is an authorized procedure for collaterally attacking a criminal judgment of conviction.

Disposition

dismissed