Opinion
A25A0680
12-26-2024
MICHAEL CASSIDY v. THE STATE.
The Court of Appeals hereby passes the following order:
In 2022, Michael Cassidy was convicted of child molestation. Cassidy filed a motion for new trial, which the trial court denied on July 10, 2024. Cassidy then filed a motion for an out-of-time appeal, which the trial court granted on October 9, 2024. Cassidy filed a notice of appeal.
In Cook v. State, 313 Ga. 471, 506 (5) (870 S.E.2d 758) (2022), the Supreme Court eliminated the out-of-time appeal procedure in trial courts, holding that a trial court is "without jurisdiction to decide [a] motion for out-of-time appeal" on the merits because "there was and is no legal authority for motions for out-of-time appeal in trial courts." The Supreme Court also concluded that this holding applies to "all cases that are currently on direct review or otherwise not yet final[,]" id., and directed that "pending and future motions for out-of-time appeals in trial courts should be dismissed, and trial court orders that have decided such motions on the merits . . . should be vacated if direct review of the case remains pending or if the case is otherwise not final." Id. at 505 (4). Compare Cambron v. Canal Ins. Co., 246 Ga. 147, 148-149 (1) (269 S.E.2d 426) (1980) (a trial court may exercise jurisdiction over a motion brought under OCGA § 9-11-60 (g) to set aside a judgment upon a finding that notice of the judgment was not provided as required under OCGA § 15-6-21 (c)), overruled in part by Wright v. Young, 297 Ga. 683, 684, n. 3 (777 S.E.2d 475) (2015); State v. Rahaman, 371 Ga.App. 810, 811-813 (1) (903 S.E.2d 276) (2024) (the rule set forth in Cambron also applies to motions for set aside in criminal cases and has not been overruled by Cook).
In light of Cook, Cassidy had no right to file a motion for an out-of-time appeal in the trial court. See Rutledge v. State, 313 Ga. 460, 461 (870 S.E.2d 720) (2022). Accordingly, the trial court's order granting Cassidy's motion for an out-of-time appeal is VACATED, and this case is REMANDED for the entry of an order dismissing his motion for an out-of-time appeal.