In the Supreme Court of Georgia

Decided: August 24, 2021

S21C0167. MOBUARY v. THE STATE.

 PER CURIAM.

By this opinion, this Court grants this pro se petitioner’s 

petition for a writ of certiorari, vacates the Court of Appeals’ order 

dismissing the petitioner’s appeal, and remands the case to the 

Court of Appeals for further proceedings consistent with this

opinion.

1

In 2003, the petitioner, Jason Mobuary, pleaded guilty in the 

Superior Court of Fulton County to enticing a child for indecent 

purposes. In July 2018, he filed a motion for an out-of-time appeal 

and a motion for appointment of counsel. The trial court denied both 

 

1 “Our rules contemplate that we may grant a petition for certiorari and 

dispose of the case summarily, without full briefing and oral argument, and we 

elect to do so here because the issue we resolve would not benefit from further 

briefing and argument.” (Citations and punctuation omitted.) Sanchious v. 

State, 309 Ga. 580, 581 n.1 (847 SE2d 166) (2020) (citing former Supreme Court 

Rule 50 (2)). See also Supreme Court Rule 50 (1) (current rule on summary 

dispositions).
2

motions on December 11, 2019. Mobuary filed a notice of appeal from 

the trial court’s rulings. He mailed his notice of appeal on May 12, 

2020; the trial court received the notice of appeal on May 22, 2020, 

and stamped it “filed” and docketed it on May 26, 2020. On June 16, 

2020, in its Case No. A20A1922, the Court of Appeals dismissed the 

appeal for lack of jurisdiction on the basis that, “[b]ecause Mobuary’s 

notice of appeal was filed 167 days after the order he seeks to appeal, 

it is untimely[.]”

2

The record shows, however, that Mobuary initiated the 

appellate process in the time allowed, by filing on January 8, 2020, 

a request for an extension of time from this Court in which to file an

application for a discretionary appeal. See Case No. S20T0751. We 

granted an extension through February 10, 2020, and Mobuary filed 

a discretionary application by the extended deadline. See Case No. 

 

2 On July 17, 2020, the Court of Appeals denied Mobuary’s motion for 

reconsideration of the June 16 dismissal order. On August 11, 2020, this Court 

granted Mobuary’s timely request for an extension of time to file a petition for 

writ of certiorari, allowing him until August 26, 2020 to file. Mobuary filed the 

instant petition on August 25, 2020. Because he filed his petition within the 

time allowed, the State’s contention that the instant petition “is concededly 

tardy” is incorrect, and the State’s motion to dismiss is denied.
3

S20D0830.

3 Because the application involved a non-murder criminal 

offense and did not appear to raise any issues that would otherwise 

invoke this Court’s jurisdiction,4 we transferred the application to 

the Court of Appeals, where it was docketed as Case No. A20D0344.

The Court of Appeals determined that Mobuary’s challenge to the 

order denying his motion for an out-of-time appeal could proceed via 

a direct appeal.5 For this reason, on May 8, 2020, the Court of 

Appeals granted Mobuary’s application for discretionary appeal and 

allowed ten days for Mobuary to file a notice of appeal in the trial 

court.6

 

3 See OCGA §§ 5-6-35 (a) (specifying cases where a direct appeal is not 

authorized); (d) (An application for discretionary appeal “shall be filed with the 

clerk of the Supreme Court or the Court of Appeals within 30 days of the entry 

of the order, decision, or judgment complained of[.]”); 5-6-39 (requests for 

extensions of time for filing in appellate proceedings must be filed before the 

expiration of the period for filing as originally prescribed or as extended by a 

permissible previous order).

4 See Ga. Const. of 1983, Art. VI, Sec. VI, Pars. II, III; OCGA §15-3-3.1.

5 See OCGA § 5-6-34 (a) (Direct appeals are authorized from “[a]ll final 

judgments, that is to say, where the case is no longer pending in the court 

below, except as provided in Code Section 5-6-35[.]”); Simmons v. State, 276 

Ga. 525, 525 n.2 (579 SE2d 735) (2003) (“The denial of a motion for an out-oftime appeal is directly appealable when the criminal conviction at issue has 

not been the subject of direct appeal.” (citation omitted)).

6 See OCGA § 5-6-35 (g) (“Within ten days after an order is issued 

granting [an application for a discretionary] appeal, the applicant, to secure a 
4

The May 8, 2020 order was entered during the period in which 

nonconstitutional filing deadlines, including filing requirements 

that were imposed on litigants by statute and court order, were 

tolled by the Chief Justice’s March 14, 2020 Order Declaring 

Statewide Judicial Emergency in response to the COVID-19

pandemic, as extended in subsequent orders. See OCGA § 38-3-62 

(a) (10). Pursuant to the Chief Justice’s July 10, 2020 Fourth Order

Extending Declaration of Statewide Judicial Emergency, such 

deadlines were reimposed effective July 14, 2020. Pursuant to the 

fourth extension order, the ten-day period for filing Mobuary’s notice 

of appeal provided in the Court of Appeals’ May 8, 2020 order began 

on July 14, 2020, and he was therefore required to file his notice of 

appeal by July 24, 2020. By that date, the trial court had already 

docketed Mobuary’s notice of appeal. Consequently, Mobuary’s 

 

review of the issues, shall file a notice of appeal as provided by law. The 

procedure thereafter shall be the same as in other appeals.”); (j) (“When an 

appeal in a case enumerated in subsection (a) of Code Section 5-6-34, but not 

in subsection (a) of this Code section, is initiated by filing an otherwise timely 

application for permission to appeal pursuant to subsection (b) of this Code 

section without also filing a timely notice of appeal, the appellate court shall 

have jurisdiction to decide the case and shall grant the application.”).
5

notice of appeal was filed within the time allowed by the Court of 

Appeals’ order granting his application for a discretionary appeal, 

as tolled by the judicial emergency orders.7 The conclusion that 

Mobuary’s notice of appeal was untimely is clearly erroneous, and 

the Court of Appeals erred in dismissing Mobuary’s appeal (Case 

No. A20A1922) on that basis.

8

Therefore, we hereby grant the petition for a writ of certiorari, 

vacate the Court of Appeals’ dismissal order, and remand this case 

to the Court of Appeals to resume proceedings in Case No. 

A20A1922.

Petition for writ of certiorari granted, judgment vacated, and 

case remanded. All the Justices concur, except Nahmias, C. J., who 

dissents. McMillian and Colvin, JJ., disqualified.

 

7 See Harper v. State, 310 Ga. 679, 679 n.1 (853 SE2d 645) (2021).

8 Although, as the dissent states, we routinely deny correction-of-error

certiorari petitions that present no issue of gravity or great public importance, 

this case presents an opportunity in a published opinion to explicitly apply the 

tolling effect of the statewide judicial emergency orders, as extended, which is

an issue of great public importance. Therefore, we have determined that this 

otherwise ordinary case is an appropriate exercise of our certiorari jurisdiction.
6

 NAHMIAS, Chief Justice, dissenting.

The Georgia Constitution authorizes this Court to “review by 

certiorari cases in the Court of Appeals which are of gravity or great 

public importance.” Ga. Const. of 1983, Art. VI, Sec. VI, Par. V 

(emphasis added). This Court’s rule on certiorari likewise explains 

that “review on certiorari is not a right. . . . A petition for the writ 

will be granted only in cases of great concern, gravity, or importance 

to the public.” Supreme Court Rule 40 (emphasis added). We have 

emphasized this high standard for granting certiorari review since 

our very first case exercising that authority:

This court . . . should be chary of action in respect to 

certiorari, and should not require by certiorari any case to 

be certified from the Court of Appeals for review and 

determination unless it involves gravity and importance. 

It was not intended that in every case a complaining party 

should have more than one right of review.

Central of Ga. R. Co. v. Yesbik, 146 Ga. 620, 622 (91 SE 873) (1917) 

(discussing the 1916 constitutional amendment establishing this 

Court’s certiorari jurisdiction). Consistent with these principles, 

Georgia’s appellate lawyers are often taught not to petition for 

certiorari when seeking only “error-correction” in a particular case.
7

The majority opinion identifies nothing about this case that 

meets the established standard for a grant of certiorari. The Court 

of Appeals decision that the majority has chosen to review was a 

short, unpublished dismissal order that set no precedent and 

affected no one other than the parties in this particular case. Nor is 

there any indication that this case involves some sort of repeated or 

contrived misanalysis by the Court of Appeals that warrants this 

Court’s correction; Mobuary cites no other similar case, and the 

majority identifies no such circumstance. 

It does appear that the Court of Appeals misapplied the 

somewhat complicated appellate procedure statutes that apply to 

the somewhat complicated facts of this case – likely by just missing 

the connection between Mobuary’s appeal case (A20A1922), in which 

the notice of appeal was filed and the dismissal order was entered, 

and the previous rulings in his discretionary application case 

(A20D0344), which gave him much more time than usual to file his 

notice of appeal after the trial court’s judgment was entered. The 

dismissal order made no reference to the discretionary application 
8

proceeding (which also means that the error was not evident on the 

face of the order, another factor that normally reduces the gravity of 

a ruling). To be sure, the result was the erroneous dismissal of 

Mobuary’s appeal, rather than its further consideration (which 

might, for all we know, have resulted in its dismissal on other 

grounds or its rejection on the merits). But this Court routinely sees 

petitions for certiorari that identify errors made by the Court of 

Appeals, including case-dispositive errors that are always of 

importance to the petitioners who lost in that court but often present 

no issue of “gravity or great public importance,” which is why we 

also routinely deny those petitions.9

 

9 In a footnote, the majority opinion suggests that this case has “great 

public importance” because it “presents an opportunity in a published opinion 

to explicitly apply the tolling effect of the statewide judicial emergency orders, 

as extended.” But we have already applied the tolling provided by those orders 

in a published opinion. See Harper v. State, 310 Ga. 679, 679 n.1 (853 SE2d 

645) (2021). We also have applied that tolling effect in numerous unpublished 

orders over the past year, any one of which we could have published if that 

were really a matter of great public importance. Moreover, this is not a case in 

which the Court of Appeals’ error resulted from a misapplication of the 

statewide judicial emergency orders. Because it apparently overlooked 

Mobuary’s discretionary application proceeding, the Court of Appeals’ order 

calculated the time by which his notice of appeal should have been filed as 

expiring in January 2020, two months before the first statewide judicial 

emergency order was issued.
9

Because the majority opinion identifies no valid reason to 

depart from that practice in this case, and no principle by which to 

distinguish Mobuary’s certiorari petition from others that we are 

denying today and many more denied in the past, I respectfully 

dissent.