Gable v. the State

Summary

The Supreme Court of Georgia affirmed the Court of Appeals' dismissal of Homer Gable's discretionary application as untimely, holding that trial courts lack authority to grant out-of-time discretionary appeals where no constitutional violation makes that remedy necessary. Interpreting OCGA § 5-6-39, the Court concluded that extensions of the 30-day discretionary-application filing deadline are available under subsection (a) (5) but only from the appellate court to which the application is directed, overruling Rosenstein v. Jenkins and Wilson v. Carver on that point. Because defendants have no constitutional right to counsel for post-conviction extraordinary motions for new trial or the discretionary applications contesting their denial, counsel's failure to file timely created no constitutional violation, and courts may not create equitable exceptions to statutorily imposed jurisdictional deadlines. The Court accordingly overruled Johnson v. State and Mitchell v. State to the extent they permitted out-of-time appeals for non-constitutional reasons.