Joshua Mariano Garcia v. State

Court of Appeals
of the State of Georgia

ATLANTA,____________________
March 06, 2026

The Court of Appeals hereby passes the following order:

A26A1181. JOSHUA MARIANO GARCIA v. THE STATE.

Joshua Mariano Garcia filed a discretionary application from the trial court’s
November 5, 2025 order dismissing his motion for an out-of-time appeal. On
December 19, 2025, we granted the application, determining that the order was
directly appealable. See Case No. A25D0248 (Dec. 19, 2025); OCGA § 5-6-35(j). In
our order, we informed Garcia that he had ten days in which to file a notice of appeal.
See OCGA § 5-6-35(g) (“Within ten days after an order is issued granting the appeal,
the applicant, to secure a review of the issues, shall file a notice of appeal as provided
by law.”). Garcia filed his notice of appeal on January 5, 2026.1
“The proper and timely filing of the notice of appeal is an absolute requirement
to confer appellate jurisdiction upon this court.” Ebeling v. State, 355 Ga. App. 469,
469 (844 SE2d 518) (2020). Because Garcia failed to file his notice of appeal within
ten days of our order granting the application, the appeal is untimely.2 Accordingly,

1
Although the certificate of service attached to Garcia’s notice of appeal is
dated December 26, 2025, we rely on the clerk’s endorsement (that is, the file-stamp
date) as the filing date in the absence of evidence to the contrary. See Lavan v. Philips,
184 Ga. App. 573, 574 (362 SE2d 138) (1987); Brinson v. Georgia R. Bank &Trust Co.,
45 Ga. App. 459, 461 (165 SE 321) (1932) (the best evidence of filing is the trial court
clerk’s entry).
2
We note that Garcia’s notice of appeal, filed more than 30 days after entry of
the trial court’s November 5, 2025 order, is also untimely as to that order. See OCGA
§ 5-6-38(a) (notice of direct appeal must be filed within 30 days of entry of the
this appeal is hereby DISMISSED for lack of jurisdiction. See OCGA § 5-6-35(g);
Ebeling, 355 Ga. App. at 469.

Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
03/06/2026
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.

judgment or trial court order sought to be appealed).