Opinion
A22A1691
01-04-2023
JASON AARON YEARBY v. THE STATE.
The Court of Appeals hereby passes the following order:
After a jury trial, Jason Aaron Yearby was convicted of rape, false imprisonment, and cruelty to children in the third degree. Yearby filed a motion for new trial, which the trial court denied in May 2021. According to Yearby, he did not receive the order denying his motion for new trial. Yearby then filed a motion for out-of-time appeal, which the trial court granted in September 2021, and Yearby has filed notice of appeal therefrom. We, however, lack jurisdiction.
In Cook v. State, 313 Ga. 471, 506 (5) (870 S.E.2d 758) (2022), the Supreme Court determined that a trial court lacks authority to grant an out-of-time appeal. Yearby, therefore, had no right to file a motion for an out-of-time appeal in the trial court, and any out-of-time appeal remedy lies in habeas corpus. Rutledge v. State, 313 Ga. 460, 461 (870 S.E.2d 720) (2022). If Yearby's right to timely seek appellate review was frustrated because the trial court did not give the notice of its ruling required by OCGA § 15-6-21 (c), Yearby "should file a motion to set aside, and the trial court should grant the motion and re-enter the judgment, whereupon the 30-day appeal period would begin to run again." See Moore v. State, 308 Ga. 556, 557 (2) (842 S.E.2d 65) (2020).
Accordingly, the trial court's order granting the motion for out-of-time appeal is hereby VACATED, and this case is hereby REMANDED to the trial court, which is DIRECTED to enter an order dismissing the motion for out-of-time appeal. See Rutledge, 313 Ga. at 461.