Court of Appeals

of the State of Georgia

ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A20D0344. JASON DARIUS MOBUARY v. THE STATE.

In 2003, Jason Darius Mobuary pled guilty to enticing a child for indecent

purposes. There is no indication in the application materials that Mobuary directly

appealed his judgment of conviction. Recently, Mobuary filed pro se motions for an

out of time appeal and appointment of appellate counsel, which the trial court denied

in separate orders on December 11, 2019. Mobuary requested an extension of time

to file a discretionary application in the Supreme Court, and this extension was

granted. See Supreme Court Case No. S20T0751 (Jan. 17, 2020). On February 3,

2020, Mobuary filed a timely application in the Supreme Court, but the Supreme

Court determined that it did not have jurisdiction and transferred the application to

this Court. See Supreme Court Case No. S20D0830 (transferred Feb. 27, 2020).

Because the extension order was not transferred to this Court with the application

materials, we were unaware that Mobuary had received an extension of time, and this

Court dismissed Mobuary’s application as untimely. 

Mobuary filed a motion for reconsideration, noting that he had received an

extension of time to file his application and subsequently timely filed the application

in the Supreme Court. A review of the Supreme Court’s records indicate that

Mobuary is correct. Therefore, we GRANT Mobuary’s motion for reconsideration,

VACATE our April 9, 2020 order dismissing the application as untimely, and

REINSTATE the application. 

In our original order, we noted that the denial of a motion for an out-of-time

appeal is directly appealable when the conviction at issue has not been the subject of

a direct appeal. See English v. State, 307 Ga. App. 544, 545 n.4 (705 SE2d 667)

May 08, 2020
(2010); see also Wetherington v. State, 296 Ga. 451, 453-454 (1) (769 SE2d 53)

(2015) (addressing merits of direct appeal from denial of motion for out-of-time

appeal following guilty plea). Generally, if a party applies for discretionary review

of a directly appealable order, this Court grants the application under OCGA § 5-6-35

(j). To fall within this general rule, however, the application must be filed within 30

days of entry of the order to be appealed. See OCGA § 5-6-35 (d); Hill v. State, 204

Ga. App. 582, 582 (420 SE2d 393) (1992). Because Mobuary’s application, in fact,

was timely filed following the Supreme Court’s order granting him an extension of

time, and because it does not appear that Mobuary’s conviction has been the subject

of a direct appeal, we herebyGRANT Mobuary’s application for discretionary appeal

under OCGA § 5-6-35 (j). 

Mobuary shall have ten days from the date of this order to file his notice of

appeal with the trial court. If he has already filed a notice of appeal in the trial court,

he need not file an additional notice. The clerk of the trial court is DIRECTED to

include a copy of this order in the records transmitted to the Court of Appeals.

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.

05/08/2020