Opinion
A22A1107
06-15-2022
MCCLURE v. THE STATE.
The Court of Appeals hereby passes the following order:
In 2018, Ronald T. McClure pled guilty under two indictments for aggravated assault and other offenses. In 2021, he filed a motion for an out-of-time appeal, which the trial court granted in 2022 after a hearing. McClure then filed this appeal from both convictions.
In a recent case, the Supreme Court determined that a trial court lacks authority to grant an out-of-time appeal. Cook v. State, 313 Ga. 471, 506 (5) (870 S.E.2d 758) (2022). This holding is to be applied to all cases that are currently on direct review or otherwise not yet final. Id. McClure therefore "had no right to file a motion for an out-of-time appeal in the trial court; his remedy, if any, lies in habeas corpus." Rutledge v. State, 313 Ga. 460, 461 (870 S.E.2d 720) (2022). Rather than granting McClure's motion, the trial court should have dismissed it. See id.
Accordingly, the trial court's order granting McClure's motion for an out-of-time appeal is hereby VACATED, and this appeal is hereby REMANDED to the trial court. The trial court is DIRECTED to enter an order dismissing the motion for an out-of-time appeal and vacating any rulings entered after its order granting the motion for out-of-time appeal that it lacked jurisdiction to decide without the granted out-of-time appeal.
If McClure believes that he was unconstitutionally deprived of his right to appeal, he may be able to petition for a writ of habeas corpus to pursue relief for that claim, along with any other claims alleging deprivation of his constitutional rights in the proceedings that resulted in his convictions. See OCGA § 9-14-41 et seq. McClure 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.