Opinion
A22A0294
05-10-2022
LORES v. THE STATE.
The Court of Appeals hereby passes the following order:
Pursuant to a negotiated plea, Cyril Flores pled guilty to aggravated assault in 2003. In 2020, he filed a motion for new trial and extraordinary relief, which he concedes was a motion for out-of-time-appeal. Flores appeals the trial court's denial of his motion.
An extraordinary motion for new trial is not available to a defendant who pled guilty. See Wright v. State, 277 Ga. 810, 811 (596 S.E.2d 587) (2004).
We are constrained to find that we cannot consider the merits of this appeal. In Cook v. State, ___ Ga. ___ (___ S.E.2d ___) (Case No. S21A1270, decided Mar. 15, 2022), the Supreme Court of Georgia eliminated the judicially created 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 appeals in trial courts." Id. at ___ (5) (slip op. at 82). 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. As such, all "pending and future motions for out-of-time appeals in trial courts should be dismissed and trial court orders that 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 ___ (4) (slip op at 80-81).
Accordingly, the trial court's June 7, 2021 order denying Appellant's motion is vacated, and this case is remanded for the entry of an order dismissing Appellant's motion. If Appellant believes that he was unconstitutionally deprived of his right to appeal, he may be able to pursue relief for that claim through a petition for a writ of habeas corpus, along with any other claims alleging deprivation of his constitutional rights in the proceedings that resulted in his conviction. See OCGA § 9-14-41 et seq. Appellant should be aware of the possible application of the restrictions that apply to such habeas corpus filings, such as the time deadlines provided by OCGA § 9-14-42 (c) and the limitation on successive petitions provided by OCGA § 9-14-51.