Damian Ibekilo v. State
A18A0485
| Ga. Ct. App. | Nov 14, 2017Background
- Damian Ibekilo was convicted of trafficking in heroin; conviction was previously affirmed on direct appeal.
- He later filed in the trial court a motion to set aside his conviction challenging the legality of the search that produced the heroin.
- He also filed a motion requesting copies of documents and records related to his case for collateral-attack purposes.
- The trial court denied both motions in an order entered May 31, 2017.
- Ibekilo filed a notice of appeal on July 20, 2017 (50 days after the order), and the Court of Appeals dismissed the appeal for lack of jurisdiction.
Issues
| Issue | Ibekilo's Argument | State's Argument | Held |
|---|---|---|---|
| Timeliness of appeal | Notice of appeal should be allowed from denial of motions | Notice was not filed within 30 days as required | Appeal dismissed as untimely; 30-day limit is jurisdictional |
| Proper remedy for challenging conviction | Motion to set aside conviction should be considered | Motion to vacate/set aside a judgment is not an appropriate remedy in criminal case | Denial of such motion is not directly appealable; appeal must be dismissed |
| Access to records for collateral attack | Entitled to copies of records for post-conviction challenge | Requests for free records absent a pending habeas/collateral petition are governed by PLRA/discretionary-appeal rules | Request must proceed as separate civil action under PLRA and via discretionary appeal procedures |
| Jurisdiction to review denial of record request | Direct appeal of denial appropriate | Appeal must follow OCGA § 5-6-35 discretionary-appeal process if no pending collateral attack | Court lacked jurisdiction to review denial on direct appeal; dismissal required |
Key Cases Cited
- Rowland v. State, 264 Ga. 872 (notice of appeal timely filing is jurisdictional)
- Harper v. State, 286 Ga. 216 (motion to vacate or set aside judgment is not an appropriate criminal remedy)
- Roberts v. State, 286 Ga. 532 (appeal from denial of motion to set aside must be dismissed)
- Coles v. State, 223 Ga. App. 491 (requests for records for collateral attack treated as separate civil actions subject to PLRA and discretionary-appeal rules)