What did the court decide?

The Court of Appeals dismissed Lemery’s appeal because his notice of appeal was filed late and he used the wrong appeal procedure for an extraordinary motion for new trial.

Who is affected by this decision?

Steven Donald Lemery is directly affected; the dismissal means the appellate court will not review the trial court’s denial of his extraordinary motion for new trial.

What happens next for Lemery?

He may consider filing an application for discretionary appeal if the rules and deadlines allow, or seek other post-conviction remedies, but the direct appeal route chosen here is closed by this dismissal.

Why was the notice of appeal untimely?

Although Lemery dated his notice March 8, it was not stamped filed by the clerk until March 23, which was 41 days after the trial court’s February 10 order, exceeding the 30-day limit in the statute.

Can this dismissal be appealed further?

A party may seek further review only through the avenues permitted by Georgia law, such as an application for discretionary review if appropriate; procedural rules and deadlines will govern any further attempts.

Steven Donald Lemery v. State

Docket A26A1789

Court of record · Indexed in NoticeRegistry archive · AI-enriched for research

Criminal AppealDismissed

Filed: Apr 29, 2026 · 2 days ago
Jurisdiction: Georgia
Court: Court of Appeals of Georgia
Type: Opinion
Case type: Criminal Appeal
Disposition: Dismissed
Docket: A26A1789

Appeal from the denial of an extraordinary motion for new trial following a 2012 criminal conviction

Summary

The Court of Appeals dismissed Steven Donald Lemery’s appeal from the trial court’s February 10, 2026 denial of his extraordinary motion for new trial. The court found it lacked jurisdiction because Lemery’s notice of appeal was filed 41 days after the order and therefore untimely under OCGA § 5-6-38(a), and because appeals from denials of extraordinary motions for new trial must proceed by discretionary appeal under OCGA § 5-6-35(a)(7). Because both timeliness and the required procedural route were lacking, the Court dismissed the appeal.

Issues Decided

Whether the notice of appeal was timely filed under OCGA § 5-6-38(a)
Whether an appeal from an order denying an extraordinary motion for new trial must be initiated by a discretionary appeal under OCGA § 5-6-35(a)(7)

Court's Reasoning

The court held that jurisdiction depends on a timely notice of appeal, and Lemery’s notice was stamped filed 41 days after the challenged order, exceeding the 30-day limit of OCGA § 5-6-38(a). The court also explained that orders denying extraordinary motions for new trial are appealable only by discretionary appeal under OCGA § 5-6-35(a)(7), so even a timely notice of direct appeal would not confer jurisdiction. Both defects required dismissal.

Authorities Cited

OCGA § 5-6-38(a)
OCGA § 5-6-35(a)(7)
Ebeling v. State355 Ga. App. 469 (844 SE2d 518) (2020)

Parties

Appellant: Steven Donald Lemery
Appellee: The State
Judge: Court of Appeals of the State of Georgia

Key Dates

Original convictions: 2012-01-01
Trial court order denying extraordinary motion for new trial: 2026-02-10
Notice of appeal stamped filed: 2026-03-23
Court of Appeals order dismissing appeal: 2026-04-29

What You Should Do Next

1
Consider filing an application for discretionary appeal
Because denials of extraordinary motions for new trial require discretionary appeals under OCGA § 5-6-35(a)(7), Lemery should evaluate whether he can timely file such an application and meet the standards for discretionary review.
2
Consult post-conviction counsel
Speak with an attorney experienced in Georgia criminal appeals and post-conviction remedies to assess other options, including habeas petitions or motion-based relief, and to confirm deadlines.
3
Verify filing dates and get proof of mailing
If relying on prison mail, preserve and obtain proof of mailing and delivery immediately to support any timeliness arguments in future filings.

Frequently Asked Questions

What did the court decide?: The Court of Appeals dismissed Lemery’s appeal because his notice of appeal was filed late and he used the wrong appeal procedure for an extraordinary motion for new trial.
Who is affected by this decision?: Steven Donald Lemery is directly affected; the dismissal means the appellate court will not review the trial court’s denial of his extraordinary motion for new trial.
What happens next for Lemery?: He may consider filing an application for discretionary appeal if the rules and deadlines allow, or seek other post-conviction remedies, but the direct appeal route chosen here is closed by this dismissal.
Why was the notice of appeal untimely?: Although Lemery dated his notice March 8, it was not stamped filed by the clerk until March 23, which was 41 days after the trial court’s February 10 order, exceeding the 30-day limit in the statute.
Can this dismissal be appealed further?: A party may seek further review only through the avenues permitted by Georgia law, such as an application for discretionary review if appropriate; procedural rules and deadlines will govern any further attempts.

The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.

Full Filing Text

Court of Appeals
of the State of Georgia

ATLANTA,____________________
April 29, 2026

The Court of Appeals hereby passes the following order:

A26A1789. STEVEN DONALD LEMERY v. THE STATE.

In 2012, Steven Donald Lemery was convicted of sex trafficking and other
crimes. He filed a motion for new trial, which the trial court denied, and we affirmed
his convictions on appeal. Lemery v. State, 330 Ga. App. 623 (768 SE2d 800) (2015).
In 2024, Lemery filed an extraordinary motion for new trial.1 On February 10, 2026,
the trial court denied this motion, and on March 23, 2026, Lemery filed a notice of
appeal. We lack jurisdiction for two reasons.
First, the notice of appeal was not timely filed. A notice of appeal must be filed
within 30 days of the entry of an appealable judgment. OCGA § 5-6-38 (a). The proper
and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction
on this Court. Ebeling v. State, 355 Ga. App. 469, 469 (844 SE2d 518) (2020).
Lemery’s notice of appeal was filed 41 days after entry of the trial court’s order.
Although the notice and certificate of service are dated March 8, 2026 — before the
expiration of Lemery’s 30-day appeal period — the notice was not stamped “filed”
by the trial court clerk until March 23. We recognize that, as a pro se prisoner, Lemery
depends upon correctional personnel to dispatch his mail. Nevertheless, even though
Lemery may have acted promptly after receiving the trial court’s order, “his filing did
not get to the superior court in time. So we have no jurisdiction over his appeal.” Id.

1
Although Lemery labeled his motion, alternatively, as one for new trial, it
cannot be construed as such because it was not filed within 30 days of his 2012
convictions. See OCGA § 5-5-40(a).
at 470.
Second, even if Lemery’s notice of appeal had been timely filed, he has no right
of direct appeal here. Rather, an appeal from an order denying an extraordinary
motion for new trial must be initiated by filing an application for discretionary appeal.
See OCGA § 5-6-35 (a)(7); Balkcom v. State, 227 Ga. App. 327, 329 (489 SE2d 129)
(1997); see also Davis v. State, 182 Ga. App. 736 (356 SE2d 762) (1987). “Compliance
with the discretionary appeals procedure is jurisdictional.” Smoak v. Dept. of Human
Resources, 221 Ga. App. 257, 257 (471 SE2d 60) (1996).
For these reasons, this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
04/29/2026
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.