Court of Appeals
of the State of Georgia

                                        ATLANTA,____________________
                                                 March 18, 2019

The Court of Appeals hereby passes the following order:

A19A1566. KEVIN TRAMELL UPKINS v. THE STATE.

      In February 2010, Kevin Tramell Upkins was convicted by a jury of armed
robbery. Upkins filed a timely motion for new trial, which was denied by the trial
court in October 2013. Upkins appealed. This court affirmed Upkins’s conviction
in an unpublished opinion. Upkins v. State, Case No. A14A1952 (decided March 25,
2015). Then, in November 2018, Upkins filed a pro se motion for new trial. The trial
court denied the motion, and Upkins filed this direct appeal. We, however, lack
jurisdiction.
      Upkins’s second motion for new trial must be construed as an extraordinary
motion for new trial because it was filed after the trial court denied his first motion
for new trial and eight years after the judgment of conviction. See OCGA § 5-5-41
(b); Jeffcoat v. State, 299 Ga. App. 54, 54 (682 SE2d 131) (2009); see also OCGA §
5-5-40 (a). An appeal from the denial of an extraordinary motion for new trial
requires compliance with the discretionary appeal procedure set forth in OCGA § 5-6-
35. See OCGA § 5-6-35 (a) (7); Balkcom v. State, 227 Ga. App. 327, 331-332 (489
SE2d 129) (1997). “The requirements of OCGA § 5-6-35 are jurisdictional, and this
court cannot accept an appeal not made in compliance therewith.” Boyle v. State, 190
Ga. App. 734, 734 (380 SE2d 57) (1989). Upkins’s failure to file an application for
a discretionary appeal deprives us of jurisdiction over this direct appeal, which is
hereby DISMISSED.




                                      Court of Appeals of the State of Georgia
                                             Clerk’s Office, Atlanta,____________________
                                                                       03/18/2019
                                             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.
