Appellant Corey Bernard Freeman and Appellee Ethron Carl Crawford each filed a pre-trial petition for writ of habeas corpus. One habeas court denied the petition filed by Freeman, and he filed a direct appeal. Another habeas court granted the petition filed by Crawford, and DeKalb County Sheriff Thomas Brown filed a direct appeal. Subsequently, recognizing that Freeman and Crawford both qualify as a prisoner pursuant to OCGA § 42-12-3 4, this Court ordered that the two above-styled cases be consolidated for purposes of appeal and requested that the parties address the issue of whether the holding in Smith v. Nichols , 270 Ga. 550, 552 1 512 SE2d 279 1999, that the final order in a pre-trial habeas corpus action filed by a prisoner is directly appealable, was effectively abrogated by the amendment to OCGA § 42-12-3 1 in Ga. L. 1999, p. 847, § 1, such that these appeals therefore must be dismissed for failure to file an application for discretionary appeal pursuant to OCGA § 5-6-35. In 1996 the Georgia General Assembly passed the Prison Litigation Reform Act for the stated purpose of addressing the dramatic rise in the costs of litigation, the overwhelming burden on Georgia courts, and other problems caused by the ever-increasing filing of nonmeritorious lawsuits “by prisoners who view litigation as a recreational exercise.” OCGA § 42-12-2; Ga. L. 1996, pp. 400, 401, § 1. The legislature created several control mechanisms in the Act, including “procedures for monitoring prisoner litigation see OCGA § § 42-12-4 & 42-12-9 and the placement of certain burdens on prisoners seeking to conduct civil litigation. See OCGA § § 42-12-4 through 42-12-8.” Jones v. Townsend , 267 Ga. 489, 490 480 SE2d 24 1997. The provision relevant to the present appeals is the restriction imposed in OCGA § 42-12-8, stating that “appeals of all actions filed by prisoners shall be as provided in Code Section 5-6-35.” OCGA § 5-6-35, when applicable, requires that an appeal of an order issued by the trial court follow a discretionary application procedure. Therefore, in the situations covered by the Act, a prisoner does not have the right of direct appeal but must file a discretionary application in the appropriate appellate court in order to obtain review of a “trial court’s action in any lawsuit, action, or proceeding filed by a prisoner, and failure to follow the appropriate procedure results in dismissal of the appeal. Cit.” Smith v. Nichols , supra.
However, the legislature expressly exempted appeals from criminal convictions and habeas corpus filings from the ambit of the Act, including the requirement in OCGA § 42-12-8 mandating a discretionary review procedure for an appeal. The original definitional section of the Act read in pertinent part as follows: As used in this chapter, the term: 1 “Action” means any civil lawsuit, action, or proceeding, including an appeal, filed by a prisoner, but shall not include: A A petition for writ of habeas corpus; or B An appeal of a criminal proceeding. Ga. L. 1996, pp. 400, 401, § 1. Since petitions for writ of habeas corpus were exempted from the Act, it appeared that a prisoner could directly appeal a decision of the trial court regarding a habeas corpus filing. However,
