¶1dissenting.
¶2We dissent for exactly the same reasons expressed in the dissent in Moye v. State, 127 Ga. App. 338, 342 (193 SE2d 562).
¶3dissenting.
¶4The defendant in this case did not file a motion for new trial or any other appeal within the time allowed by law. This court has consistently held, time without number, that an appeal that is not timely filed, must be dismissed or affirmed. See Code Ann. §§ 6-702, 6-803, 70-303; Lee v. State, 124 Ga. App. 492 (184 SE2d 229); Harris v. State, 225 Ga. 458, 461 (2) (169 SE2d 331); Williams v. State, 112 Ga. App. 566 (145 SE2d 765); Smith v. Smith, 113 Ga. App. 111 (2, 3) (147 SE2d 466); Jordan v. Caldwell, 229 Ga. 343 (191 SE2d 530). Is there any reason why we should treat this case differently? As hundreds of defendants who have suffered an affirmance or dismissal of their appeals at our hands, because they were not timely filed, are we to treat this defendant differently, and if so, why should we make a difference and treat this as a special case, not subject to the rule of dismissal because of untimeliness in filing his appeal?
¶5Here the defendant has gone into the United States District Court for the Southern District of Georgia, and that court has assumed the authority of, in effect, ordering this court to allow the filing of an appeal by this defendant (despite the fact that he did not file an appeal within the time required by law) or the District Judge will, after the passage of 120 days, order defendant discharged from custody, — in other words, "turn him loose.”
¶6*755If the United States District Court — any United States District Court — has superior jurisdiction to the Court of Appeals of Georgia, I am not aware of it. I am not ready to bend the knee to the United States District Court by allowing the filing of an appeal by a defendant after the lawful time has expired, on penalty of seeing a convicted defendant turned out of prison by the District Judge of the United States Court. As one Judge of this court, I do not intend to be dictated to by the United States District Court and told to treat this defendant with "kid gloves,” and give him special consideration, and allow him to file his appeal now when he has not filed his appeal within the time required by law. I intend to treat him just as we have treated all other defendants in this posture.
¶7It is obvious that the defendant here has used a habeas corpus court as a substitute for a writ of error, or appeal. The Supreme Court of Georgia and the United States Supreme Court have held many, many times that this cannot be done. Glasgow v. Moyer, 225 U. S. 420 (32 SC 753, 56 LE 1147); Johnson v. Zerbst, 304 U. S. 458 (58 SC 1019, 82 LE 1461); Larson v. United States, 364 U. S. 858 (81 SC 38, 5 LE2d 44); Atkins v. Martin, 229 Ga. 815 (194 SE2d 463); Wright v. Caldwell, 229 Ga. 817 (194 SE2d 441); Green v. Caldwell, 229 Ga. 650 (193 SE2d 847); Martin v. Ault, 229 Ga. 594 (193 SE2d 613); Thrash v. Caldwell, 229 Ga. 585 (193 SE2d 605); Nelson v. Smith, 228 Ga. 117 (184 SE2d 150); Johnson v. Smith, 227 Ga. 611 (182 SE2d 101); Moore v. Dutton, 223 Ga. 585 (157 SE2d 267); Buxton v. Brown, 222 Ga. 564 (150 SE2d 636); Archer v. Grimes, 222 Ga. 8 (148 SE2d 395).
¶8Only once before within my memory has this kind of situation arisen in this court, and I refer to my dissent in Moye v. State, 127 Ga. App. 338, 342 (193 SE2d 562).
¶9It is the duty of the Court of Appeals of Georgia to face up to its responsibility and render the same judgment here that we have rendered in hundreds of others — that is — not consider the motion for a new trial because the appeal was filed too late. We have our duty; the United States District Court has its duty. If the United States District Court has the authority and inclination to turn a hundred or a thousand prisoners out of confinement unless the Court of Appeals of Georgia allows the late filing *756of appeals by defendants who did not file an appeal within the time required by law, then I say let that court face up to its duty and proceed full speed ahead. I intend to face up to my duty and definitely and positively refuse to vote to allow the late filing of an appeal by this defendant, the judgment of the United States District Court for the Southern District of Georgia notwithstanding.