THIRD DIVISION

BARNES, P. J.,

BOGGS and BRANCH, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules/

March 25, 2015

In the Court of Appeals of Georgia

A14A2312. BARROW v. MIKELL. 

BRANCH, Judge.

In April 2010, the Georgia Department of Driver Services (“DDS”) revoked

appellant Abdou Barrow’s license. In June 2010 and November 2013, Barrow

attempted to have his license reinstated, but DDS denied both of these requests.

Within 30 days of the denial of his November 2013 application, Barrow appealed to

the superior court, which dismissed the appeal as untimely. On appeal from that

dismissal, Barrow arguesthat the trial court erred when it concluded that Barrow lost

his right to appeal. We find no error and affirm.

The facts relevant to this appeal are not in dispute. Barrow, a Gambian citizen,

entered the United States in 1992 and filed an application for asylum in 1997. In

1999, Barrow was ordered removed from the United States. Between 2000 and 2001,
Barrow pled guilty to a number of traffic offenses in Georgia, including hit and run.

As a result, his Georgia driver’s license was suspended in June 2000 and cancelled

in December 2001.

Barrow was issued a new driver’s license on February 25, 2009. On April 9,

2010, DDS revoked Barrow’s license for what DDS termed “fraud or fictitious use

of license.” On April 27, 2010, Barrow applied to reinstate his license. As of that

date, however, federal Immigration and Customs Enforcement (“ICE”) records

showed thatBarrow had a warrant of removal pending against him. On June 18, 2010,

DDS notified Barrow that it was “unable to complete [the] processing” of his

application for reinstatement because hislegal presence in the United States could not

be verified. In the same notification, DDS instructed Barrow to return with “all your

official documents, including all valid immigration documents,” by July 13, 2010.

Barrow did not do so, however, and did not appeal either the April 9 revocation or the

June 18 denial of his application for reinstatement.

Almost three years later, in April 2013, Barrow learned that both his petition

for asylum as well as federal removal proceedings against him had been revived. In

August 2013, Barrow was apparently arrested for driving on a cancelled license. On

November 13, 2013, Barrow applied at the Snellville DDS office to have his license

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reinstated. During that visit, a DDS worker confirmed that Barrow’slicense had been

“suspended” on April 9, 2010, and told Barrow that his application was denied. On

November 25, 2013, DDS sent emails to Barrow’s counsel again confirming that it

would not reinstate Barrow’s license because he was not lawfully present in the

United States. 

On December 2, 2013, Barrow appealed the DDS’s November 2013 refusal of

reinstatement. The State moved to dismiss Barrow’s appeal as untimely under OCGA

§ 40-5-66, and the superior court granted the motion on that ground. Barrow then

sought discretionary review of the superior court’s decision by the Supreme Court of

Georgia, arguing that the case presented a novel constitutional question as to the

process due to a person denied a state driver’s license as a result of a federal agency’s

determination that the same person was not lawfully present in the United States. The

Supreme Court transferred the case to this Court on grounds including that the trial

court had ruled only on the timeliness of Barrow’s appeal and not on any

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constitutional question.

1 We then granted Barrow’s application for discretionary

review of the superior court’s decision. 

The only question before us is thus whether Barrow’s appeal from the DDS to

the superior court was timely. Barrow argues that the revival of his application for

asylum in March 2013 gave him the right both to apply for the reinstatement of his

license in November 20132

and to appeal any adverse decision on that application

within 30 days. We do not agree. 

OCGA § 40-5-66 creates a right of appeal from “any decision” of the DDS as

follows:

(a) Except as provided in subsection (h) of Code Section 40-5-67.1

[concerning licenses suspended as a result of chemical and blood tests]

and subsection (h) of Code Section 40-5-64 [concerning limited driving

1 See Ga. Bd. of Dentistry v. Pence, 223 Ga. App. 603, 604 (1) (478 SE2d 437)

(1996) (Georgia Supreme Court will not rule on a constitutional question “unless it

clearly appears in the record that the trial court distinctly passed on the point”)

(citation and punctuation omitted). Raskin v. Wallace, 215 Ga. App. 603, 604 (1) (451

SE2d 485) (1994) (where a trial court did not “distinctly pass or rule on” a

constitutional issue, an assertion as to it on appeal “presents nothing for review by

any appellate court”) (citation and punctuation omitted).

2 See, e.g., OCGA § 40-5-21.1 (a) (“an applicant who presents in person valid

documentary evidence of . . . (2) [a] pending or approved application for asylum in

the United States . . . may be issued a temporary license, permit, or special

identification card.”). 

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permits for certain offenders], any decision rendered by the department

shall be final unless the aggrieved person shall desire an appeal. In

such case, such person shall have the right to enter an appeal in the

superior court of the county of his residence or in the Superior Court of

Fulton County. Such appeal shall name the commissioner as defendant

and must be filed within 30 days from the date the department enters its

decision or order. The person filing the appeal shall not be required to

post any bond nor to pay the costs in advance.

(b) . . . No person shall be allowed to operate any vehicle in violation of

any suspension or revocation by the department while any such appeal

is pending. 

(Emphasissupplied.) To determine the meaning of the term “any decision” in OCGA

§ 40-5-66, we must

ascertain the legislature’s purpose in enacting [the] statute and then

construe the statute to effect that purpose, avoiding interpretations that

do not square with common sense and sound reasoning. Language in

one part of the statute must be interpreted in light of the legislature’s

intent asfound in the whole statute. But if the statutory language is plain

and unequivocal, then judicial construction is not only unnecessary but

forbidden.

Ins. Dept. of the State of Ga. v. St. Paul Fire & Casualty Ins. Co., 253 Ga. App. 551,

552-553 (559 SE2d 754) (2002) (punctuation and footnotes omitted). “[T]he

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interpretation of a statute is a question of law, which is reviewed de novo on appeal.

Because the trial court’sruling on a legal question is not due any deference, we apply

the ‘plain legal error’standard of review.” Hart v. State, 319 Ga. App. 749 (738 SE2d

331) (2013) (punctuation and footnote omitted).

Barrow asserts that because the statute grants him a right of appeal from “any

decision” of the DDS concerning his license, OCGA § 40-5-66 (a),3

he has a right to

appeal DDS’s November 2013 denial of his request to reinstate that license, even

though the originalrevocation occurred in April 2010. We recognize that the statutory

language as to “any decision” is very broad. However, in Earp v. Lynch, 257 Ga. 633

(362 SE2d 55) (1987), the Supreme Court of Georgia held that notwithstanding the

later expungement of the same traffic offenses that had led to the revocation of a

driver’s license, a driver who had failed to request reinstatement until approximately

a year after the original revocation had waived hisright to an appeal because “OCGA

§ 40-5-66 requires appeals to be made within thirty days of the revocation decision

3 The statute’s language as to “any decision” was maintained throughout

amendments made since 1987. See Ga. L. 1989, p. 14, § 40; Ga. L. 1990, p. 2048, §

4; Ga. L. 1992, p. 2564, § 4.

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by the Department.” Id. at 634 (emphasis supplied).4 The instant case presents the

same factual scenario. Although we recognize that Barrow did not have any grounds

for appealing the initial revocation decision in 2010, we are constrained to affirm the

trial court’s denial of his 2013 appeal (based on a change to his immigration status)

as untimely under the rationale of Lynch, which binds this Court. 257 Ga. at 634. 

Judgment affirmed. Barnes, P. J., and Boggs, J., concur.

4 Although the Lynch Court cited Earp v. Angel, 257 Ga. 333 (357 SE2d 596)

(1987), as controlling authority, the Angel appellant neither appealed his initial

revocation nor applied to the DDS for reconsideration of that revocation; instead, he

went directly to the habeas court for relief. Id. at 334. Nonetheless, Lynch concluded

that the facts before it were sufficiently “similar to the facts in Angel” such that “our

decision in that case controls here.” 257 Ga. at 634 (reversing grant of habeas relief).

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