dissenting.
1. In Division 1 of its opinion, the majority anomalously holds that, because of a cursory and distinguishable ruling in Hicks v. Scott, 273 Ga. 358, 359 (541 SE2d 27) (2001), a document statutorily required to give this Court jurisdiction is actually entirely unnecessary for the exercise of that jurisdiction. There was a complete absence of any analysis in the precedent upon which the majority purports to rely. Hicks v. Scott, supra at 360 (Carley, J., dissenting). Accepting, however, that Hicks correctly held that the failure of the habeas court to inform the prisoner of the requisite appellate procedure excuses an untimely application for certificate of probable cause, the majority offers absolutely no reason why the same omission also excuses the filing of any application whatsoever. Indeed, even Appellant’s counsel conceded, during oral argument, that, if there was no application for certificate of probable cause, then this Court has no jurisdiction in this case.
“ Tn habeas corpus cases, the General Assembly has determined that the unsuccessful petitioner must timely file both a notice of *8appeal and an application for a certificate of probable cause. . . .’ [Cit.]” (Emphasis in original.) Hughes v. Sikes, 273 Ga. 804 (1) (546 SE2d 518) (2001). See also Fullwood v. Sivley, 271 Ga. 248 (517 SE2d 511) (1999). This Court relaxed the statutory time requirements where, as here, the habeas court fails to inform a prisoner of the proper procedure for obtaining appellate review of its order. Hicks v. Scott, supra at 359, 360 (the dissent sets forth the jurisdictional facts). See also Massaline v. Williams, 274 Ga. 552 (554 SE2d 720) (2001) (adopting a mailbox rule for habeas petitions filed by pro se prisoners). In neither Hicks nor Massaline did this Court imply that a pro se habeas petitioner would never have to file both the application and notice of appeal. Rather, the Court’s concern was that he may not be able to file them within 30 days. However, this Court does not have authority to waive enforcement of the full statutory jurisdictional mandate. See Fullwood v. Sivley, supra at 251-254. In nonhabeas contexts, the window of time for filing a notice of appeal or application to appeal may be broadened by various methods, including extensions of time, but the eventual filing of the notice, and the application whenever statutorily required, is still an absolute requirement to confer jurisdiction on the appellate court. See Watson v. State, 202 Ga. App. 667 (415 SE2d 306) (1992). Similarly, although a premature notice of appeal is permissible, this does not dispense with the requirement that final judgment eventually must be entered if the appellate court is to obtain jurisdiction. McKeever v. State of Ga., 189 Ga. App. 445 (375 SE2d 899) (1988). While the holdings in Hicks and Massaline go only to the relative timeliness of an appeal wherein both an application and a notice of appeal are ultimately filed, the filing vel non of both of those documents is still determinative of the very existence of appellate jurisdiction. See McKeever v. State of Ga., supra at 446.
Neither Hicks nor any other published opinion has held that this Court has jurisdiction to review habeas proceedings under OCGA § 9-14-40 et seq. notwithstanding the total absence of either the application or the notice of appeal. Indeed, Patterson v. Earp, 257 Ga. 729 (363 SE2d 248) (1988), cited in Fullwood and never overruled, specifically held that the complete absence of an application required dismissal. Writing for a unanimous court in 1999, then-Chief Justice Benham confirmed that a prisoner is not authorized “to appeal directly the denial of a petition for habeas corpus relief.” Smith v. Nichols, 270 Ga. 550, 552 (1) (512 SE2d 279) (1999). If Appellant can obtain a decision on the merits simply by filing a notice of appeal, “then he is being afforded the right to bring a direct appeal which Smith clearly held to be unauthorized.” Fullwood v. Sivley, supra at 251.
*9OCGA § 9-14-52 requires this Court to engage in a discretionary review process concerning an appeal from the habeas court’s denial of relief to a prisoner held under sentence of a state court of record, thereby making unauthorized a direct appeal from the denial of a post-trial habeas petition.
Smith v. Nichols, supra at 552 (1). Thus, the application requirement is not a procedural nicety. It is a jurisdictional prerequisite. Fullwood v. Sivley, supra at 250. Having no jurisdiction to review the habeas court’s order, we are without authority to resolve the issues raised by Capote and addressed in Divisions 2 through 5 of the majority opinion. Under Patterson and Smith, this case must be dismissed. Therefore, I dissent to the reversal of the judgment of the habeas court and to the remand of this case for further proceedings.
2. Moreover, even if the majority were correct in refusing to dismiss this appeal, its resolution of the merits is erroneous. Assuming that the habeas court could not dismiss the proceeding for lack of personal jurisdiction over the Warden, it still does not have jurisdiction over the subject matter. Because Capote is in federal custody outside the State and his state sentence has expired, his liberty is not “being restrained by virtue of a sentence imposed against [him] by a state court of record.” OCGA § 9-14-41.
The United States Attorney, on behalf of the Warden, raised and briefed this issue in the habeas court and on appeal. The majority discusses the issue, but only after stating that we are not authorized to address it because it is beyond the scope of our inquiry. The cases cited by the majority for this proposition do not involve a granted application for certificate of probable cause in a habeas case, and do not prohibit this Court upon the grant of other forms of discretionary review from addressing a question raised below merely because it did not specifically pose that question. Nothing in the habeas statute which authorizes our review of this case prevents us from considering an issue which is not specified in our order granting the certificate of probable cause. OCGA § 9-14-52. Moreover, the question stated in our order broadly encompassed the procedure to be followed under the circumstances of this case, and subject matter jurisdiction is as much a procedural matter as is personal jurisdiction.
In interpreting OCGA § 9-14-41, this Court has followed federal precedent. Parris v. State, 232 Ga. 687, 691 (208 SE2d 493) (1974); Sims v. State of Ga., 230 Ga. 589 (198 SE2d 298) (1973). In Carafas v. LaVallee, 391 U. S. 234 (88 SC 1556, 20 LE2d 554) (1968), the Supreme Court of the United States interpreted federal “statutory language as requiring that the habeas petitioner be ‘in custody’ under the conviction or sentence under attack at the time his petition *10is filed.” Maleng v. Cook, 490 U. S. 488, 490-491 (109 SC 1923, 104 LE2d 540) (1989). Thus, in Sims v. State of Ga., supra at 591, this Court held that under Carafas a state habeas court lacked subject matter jurisdiction where, as here, the petitioner “had been discharged from all state restraint prior to filing his petition for post-conviction relief.” (Emphasis supplied.) This Court did subsequently revisit the issue, again analyzed Carafas, and overruled Sims, holding that “[t]he mere fact that the state sentence has been completely served should no longer be a bar to attacking it through habeas corpus even though the petition is not initially filed until after the sentence is completed.” Parris v. State, supra at 690. However, the Supreme Court of the United States has now rejected an expansive interpretation of Carafas which stretches the federal statutory language too far. Maleng v. Cook, supra at 491. “We have never held . . . that a habeas petitioner may be ‘in custody’ under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed.” (Emphasis in original.) Maleng v. Cook, supra at 491. Accordingly, I submit that we should readopt the holding of Sims, which would require that we affirm the grant of the motion to dismiss because Capote was not being restrained pursuant to the Georgia conviction and sentence when he filed his habeas petition.
The majority confuses the issue of subject matter jurisdiction with the issue of whether a habeas petitioner may ever mount a collateral attack on a prior, expired conviction as part of a post-conviction challenge to a subsequent sentence enhanced by the earlier conviction. After addressing the issue of jurisdiction over the subject matter, Maleng expressly left open the extent to which a previous, expired “conviction itself may be subject to challenge in the attack upon the [later] sentences which it was used to enhance. [Cit.]” Maleng v. Cook, supra at 494. Until the Supreme Court of the United States answered that question in Lackawanna County District Attorney v. Coss, 532 U. S. 394 (121 SC 1567, 149 LE2d 608) (2001), the federal circuits unanimously allowed such a challenge, but most interpreted “Maleng as requiring the petitioner to do so by attacking his current sentence. [Cits.]” (Emphasis supplied.) Young v. Vaughn, 83 F3d 72, 78 (III) (B) (3rd Cir. 1996). Only the Eleventh Circuit “held that it makes no difference whether the petitioner attacks the expired or the enhanced sentence. . . .” Young v. Vaughn, supra at 79 (III) (B), fn. 7. Even the Eleventh Circuit has explained that, “ ‘[i]n order to meet the “in custody” requirement, the petitioner is deemed to be challenging the current sentence that has been enhanced by an expired conviction, rather than directly challenging the expired conviction.’ [Cit.]” Means v. Alabama, 209 F3d 1241, 1242 (11th Cir. 2000). See also Van Zant v. Florida Parole Commission, 104 F3d 325, 327 (II) (11th Cir. 1997). “[T]he courts . . . agree that *11there can be no isolated habeas corpus attack on the prior conviction as such, since the petitioner is no longer ‘in custody’ pursuant to it.” Annot., 176 ALR Fed. 189, § 11, at pp. 264-265 (2002). Lackawanna removed all doubt when it held that the habeas petitioner there “is no longer serving the sentences imposed pursuant to his [earlier] convictions, and therefore cannot bring a federal habeas petition directed solely at those convictions.” Lackawanna County District Attorney v. Coss, supra at 401 (II) (A). Maleng “tells us that a person serving in State A a sentence enhanced because of prior convictions in State B is not ‘in custody in State B.” Lowery v. McCaughtry, 954 F2d 422, 423 (7th Cir. 1992). Thus, if this Court is to continue its long standing practice of following federal precedent in this area, it must conclude that the habeas court lacked subject matter jurisdiction, because Capote “is not in Georgia’s ‘custody’ as Maleng defines that term.” Lowery v. McCaughtry, supra at 423.
However, even if we do not retreat from Parris and its progeny at this time, but permit some direct attacks on expired convictions, we should refuse to extend the language of OCGA § 9-14-41 even farther. See Maleng v. Cook, supra at 492. That statute requires at least “ ‘significant restraints on the petitioner’s liberty other than physical custody.’ [Cit.]” Farris v. Slaton, 262 Ga. 713 (3) (425 SE2d 291) (1993). See also Hardison v. Martin, 254 Ga. 719, 721 (1) (334 SE2d 161) (1985) (citing Carafas and Parris). As the United States Attorney points out, no Georgia case has ever found significant restraints on a habeas petitioner’s liberty where, as here, he was not in state custody, was confined outside the state, and the sentence being attacked has expired. Surely in these circumstances, “the collateral consequences of [the] conviction are not themselves sufficient to render an individual ‘[restrained by virtue of a state sentence]’ for the purposes of a habeas attack upon it.” Maleng v. Cook, supra at 492. Instead, Capote is presently being restrained out of state solely by virtue of a federal sentence, because the state sentence has expired. Compare Tharpe v. Head, 272 Ga. 596 (533 SE2d 368) (2000) (habeas petitioner challenged prior state conviction used as aggravating evidence in his state death penalty trial); Callahan v. State, 235 Ga. 359 (219 SE2d 717) (1975) (habeas petitioner in constructive state custody could attack state sentence not yet served); Atkins v. Hopper, 234 Ga. 330, 333 (2) (216 SE2d 89) (1975) (state habeas attack on an unexpired lesser concurrent sentence). He may challenge the federal conviction directly in a habeas proceeding in federal court, at which time he can make a limited collateral attack on the prior, state conviction. Lackawanna County District Attorney v. Coss, supra; Maleng v. Cook, supra at 493-494. In my opinion, however, he cannot directly attack the state conviction in a state habeas proceeding. A contrary holding, based merely on the fact that the Georgia *12conviction was used to enhance a federal sentence, would finally and completely eliminate the “restraint” requirement from the state habeas statute. See Maleng v. Cook, supra at 492.
Decided November 15, 2002 Reconsideration denied December 13, 2002. Roger A. Baruch, James C. Bonner, Jr., for appellant. Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, Sharon D. Stokes, for appellee. Paula K. Smith, Assistant Attorney General, amicus curiae.While the majority takes issue with this dissent, it apparently declines to make a decision on the merits of this issue of jurisdiction over the subject matter. Although it was not expressly ruled on below, the majority should at least recognize that the habeas court may consider this ground on remand. See Dodd v. City of Gainesville, 250 Ga. App. 722, 724 (3) (551 SE2d 62) (2001), aff’d, City of Gaines-ville v. Dodd, 275 Ga. 834 (573 SE2d 369) (2002). On remand, the State clearly may renew the motion to dismiss to the extent that it is based upon the lack of subject matter jurisdiction, and the habeas court will be authorized to rule on that ground.
I am authorized to state that Justice Thompson and Justice Hines join in Division 1 of this dissent.