Appellant Derek Lee Thomas was indicted for violating the Georgia Controlled Substances Act on March 7, 1989. On May 1, 1989, he entered a guilty plea and was sentenced to seven years in prison. Fourteen years later, on May 20, 2003, appellant petitioned, pro se, for habeas relief in regard to his state conviction which was later used to enhance a sentence he received in a subsequent federal prosecution. On April 23, 2007, the habeas court issued an order denying appellant’s request for habeas relief. The court’s order was devoid of any statement of facts or conclusions of law as required by OCGA § 9-14-49. We granted the application for certificate of probable cause to examine the issue of whether appellant waived his right to pursue state habeas relief when he entered into his federal plea deal. We now vacate the habeas order and remand to the habeas court with direction. 1. We address initially the question of our jurisdiction. Appellant’s notice of appeal and his application for certificate of probable cause were not filed within the requisite 30 days following the entry of the habeas order denying relief. Such untimeliness typically subjects the appeal to dismissal. Fullwood v. Sivley , 271 Ga. 248, 249-51 517 SE2d 511 1999. However, “before a habeas appeal will be treated as being subject to dismissal for procedural irregularities, it must be established that the petitioner was informed of the proper appellate procedure.” Capote v. Ray , 276 Ga. 1 1 577 SE2d 755 2002. In the present case, the habeas court’s order only referred appellant to OCGA § 9-14-52. Based on our decisions in Capote v. Ray , supra, and Hicks v. Scott , 273 Ga. 358 541 SE2d 27 2001, the mere reference to the statute outlining the procedure to be followed to appeal the denial of habeas relief is an insufficient method by which to notify a habeas petitioner of the proper procedure to obtain appellate review. See also Harris v. State , 278 Ga. 280, 282 600 SE2d 592 2004 in concurrence Chief Justice Fletcher noted that a certificate of probable cause will not be dismissed as untimely if petitioner was not “explicitly” informed of the “appropriate appellate procedure”.1 Accordingly, this procedural defect is not fatal to appellant’s appeal. Capote v. Ray , supra, 276 Ga. at 2.
2. OCGA § 9-14-49 requires habeas courts to “make written findings of fact and conclusions of law upon which the judgment is based.” If a habeas court enters an order denying relief, but fails to make the requisite findings of fact and conclusions of law, the case must be vacated and remanded with instruction to the habeas court to enter a new order that complies with OCGA § 9-14-49. Hughes v. Sikes , 273 Ga. 804 3 546 SE2d 518 2001. The order at issue here contains no indication of the facts or law upon which the habeas court based its decision. Because the order does not meet the requisites of OCGA § 9-14-49, it is vacated and the case is remanded to the habeas court for issuance of an order compliant with OCGA § 9-14-49.
