Opinion
A23A0663
12-22-2022
NATHANIEL CARTER v. THE STATE.
The Court of Appeals hereby passes the following order:
In November 2019, a jury found Nathaniel Carter guilty on three counts of child molestation. While still represented by counsel, Carter filed a motion for new trial, which the trial court dismissed as a legal nullity in April 2021. See Meheux v. State, 309 Ga. 857, 858 (848 S.E.2d 844) (2020) (pro se motion for new trial filed while the defendant is still represented by counsel is a legal nullity). In May 2021, the trial court entered a consent order granting Carter an out-of-time appeal, and Carter filed a motion for new trial, which the trial court denied in November 2021. Carter then filed this appeal.
Until recently, Georgia law recognized an out-of-time appeal as the judicially-created remedy for "a criminal defendant [who] demonstrates that his appeal of right has been frustrated by a violation of constitutional magnitude[.]" Collier v. State, 307 Ga. 363, 371 (2) (834 S.E.2d 769) (2019). However, the Supreme Court of Georgia has since held that a trial court is "without jurisdiction to decide [a] motion for out-of-time appeal" on the merits because there is "no legal authority for motions for out-of-time appeal in trial courts." Cook v. State, 313 Ga. 471, 506 (5) (870 S.E.2d 758) (2022). The Supreme Court in Cook also concluded that this holding is to be applied 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).
In light of Cook, Carter had no right to file a motion for out-of-time appeal in the trial court. See Rutledge v. State, 313 Ga. 460, 461 (870 S.E.2d 720) (2022). Accordingly, we VACATE the trial court's order granting the motion for out-of-time appeal and REMAND for entry of the appropriate dismissal order. See id.