Court of Appeals
of the State of Georgia

                                        ATLANTA,____________________
                                                 December 10, 2018

The Court of Appeals hereby passes the following order:

A19D0192. WILLIE MAYS v. THE STATE.

      In 2015, Willie Mays pleaded guilty to theft by taking. In 2018, Mays appealed
from the trial court’s denials of his motion to set aside a void judgment and his
extraordinary motion for new trial. Both appeals were dismissed. See Case No.
A18A1715 (June 7, 2018); Case No. A18A1716 (June 7, 2018). In the meantime,
however, Mays filed a motion to withdraw his guilty plea.1 On June 18, 2018, the trial
court denied his motion to withdraw his guilty plea on the basis that the case was still
on appeal and the remittitur had not yet been returned. Mays filed a direct appeal in
Case No. A19A0650.2 He also filed this application on November 13, 2018.
      As an initial matter, it is not clear why Mays has filed an application, as no
section of OCGA § 5-6-35, the discretionary-appeal statute, applies. Rather, orders
resolving out-of-time motions to withdraw guilty pleas have been treated by our
Supreme Court as directly appealable. Smith v. State, 283 Ga. 376, 376-377 (659
SE2d 380) (2008). Ordinarily, we will grant an otherwise timely application for
discretionary appeal if the lower court’s order is subject to direct appeal. See 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), (j).


      1
        In violation of Court of Appeals Rule 31 (e), Mays has failed to include with
his application a copy of the “motion that led directly to the order or judgment being
appealed and a copy of any responses to the . . . motion.”
      2
       Mays has also filed an appeal challenging the denial of his motion for an out-
of-time appeal. See Case No. A19A0649.
Because Mays filed this application 148 days after entry of the order he seeks to
appeal, the application is untimely, and it is hereby DISMISSED for lack of
jurisdiction.

                                     Court of Appeals of the State of Georgia
                                            Clerk’s Office, Atlanta,____________________
                                                                      12/10/2018
                                            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.
