Court of Appeals

of the State of Georgia

ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A20D0347. VICTOR WAYNE WEATHERSPOON v. THE STATE.

Victor Weatherspoon currently isserving a prison sentence following his guilty

pleas to burglary and several other offensesin 2014. The materials before us contain

no indication that he filed a direct appeal fromhisjudgment of conviction. Following

his convictions, Weatherspoon filed a motion to withdraw his guilty pleas and a

“Petition for Exoneration,” which the trial court denied in a single order entered on

October 23, 2019. Weatherspoon filed this pro se application for discretionary review

on March 13, 2020. We lack jurisdiction.

The denial of Weatherspoon’s motion to withdraw his guilty pleas was directly

appealable. See, e.g., Smith v. State, 283 Ga. 376, 376 (659 SE2d 380) (2008). This

Court ordinarily will grant an application for discretionary review of a directly

appealable order under OCGA § 5-6-35 (j). See id. To fall within this general rule,

however, the application must be filed within 30 days of entry of the order or

judgment sought to be appealed. See OCGA § 5-6-35 (d), (j). 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). Weatherspoon’s application is untimely, as it was filed 142

April 13, 2020
days after entry of the order he seeks to appeal.

1 Accordingly, this application is

hereby DISMISSED for lack of jurisdiction.

Because it appears that Weatherspoon has not yet had a direct appeal, and to

the extent that his right to a direct appeal may have been frustrated by errors of

counsel, he may be entitled to an out-of-time appeal. See Rowland v. State, 264 Ga.

872, 875-876 (2) (452 SE2d 756) (1995). He therefore is informed of the following

in accordance with Rowland, 264 Ga. at 875-876 (2): This application has been

dismissed because you failed to file a proper and timely application or notice of

appeal. If you still wish to seek appellate review of your judgment of conviction, you

may petition the trial court for leave to file an out-of-time appeal. If the trial court

grants your request, you will have 30 days from the entry of that order to file a notice

of appeal referencing your convictions. If the trial court denies your request, you will

have 30 days from the entry of that order to file a notice of appeal referencing the

denial of your request for an out-of-time appeal. The Clerk of Court is DIRECTED

to send a copy of this order to Weatherspoon and to his attorney, and the latter also

is DIRECTED to send a copy to Weatherspoon.

Court of Appeals of the State of Georgia

Clerk’s Office, Atlanta,____________________

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.

1

In his application materials, Weatherspoon asserts that he did not receive the

trial court’s October 23 order until after the time to file a timely appeal had expired. 

If, as Weatherspoon appears to suggest, his right to timely seek appellate review was

frustrated due to a trial court error, his remedy is to petition the trial court to vacate

and re-enter the order at issue in the manner described in Cambron v. Canal Ins. Co.,

246 Ga. 147, 148-149 (1) (269 SE2d 426) (1980), disapproved in part by Wright v.

Young, 297 Ga. 683, 684, n. 3 (777 SE2d 475) (2015).

04/13/2020