Opinion
A22A1287
06-08-2022
ERIK SMITH v. THE STATE.
The Court of Appeals hereby passes the following order:
After entering guilty pleas in 2019 to child molestation and other offenses, Erik Smith filed a motion for out-of-time appeal in 2021. The trial court denied the motion, and Smith appealed. This Court vacated the trial court's order and remanded that case for the trial court to apply the correct legal standard in deciding the motion. Case No. A22A0181 (decided Feb. 22, 2022). On remand, the trial court dismissed the motion for out-of-time appeal based on the recent holding in Cook v. State, 313 Ga. 471 (870 S.E.2d 758) (2022), and Smith filed this appeal.
In Cook v. State, the Supreme Court determined that a trial court lacks authority to grant an out-of-time appeal. Cook, 313 Ga. at 506 (5). This holding applies to "all cases that are currently on direct review or otherwise not yet final." Id. Smith, 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).
Thus, the trial court correctly determined that it did not have jurisdiction to consider Smith's motion to file an out-of-time appeal, and the court's order dismissing the motion does not present a cognizable basis for an appeal. See Henderson v. State, 303 Ga. 241, 244 (2) (811 S.E.2d 388) (2018). Accordingly, this appeal is hereby DISMISSED.