Opinion
A22A0745
05-03-2022
TOWNES v. THE STATE.
The Court of Appeals hereby passes the following order:
Jason Townes filed this appeal pursuant to a trial court order granting his motion for an out-of-time appeal. But in Cook v. State, ___ Ga. ___ (___ S.E.2d ___) (Case No. S21A1270, decided March 15, 2022), our Supreme Court recently held that “there was and is no legal authority for motions for out-of-time appeal in trial courts and that the out-of-time appeal procedure . . . is not a legally cognizable vehicle for a convicted defendant to seek relief from alleged constitutional violations. [This] holding applies . . . to all cases that are currently on direct review or otherwise not yet final.” Id. at ___ (5) (slip op. at 82). So Townes “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, ___ Ga. ___ (___ S.E.2d ___) (Case No. S21A1036, decided March 15, 2022) (slip op. at 4).
Accordingly, the trial court was without jurisdiction to decide [Foster-Waithe's] motion for [an] out-of-time appeal . . . and because the trial court's order plainly shows that it [granted] the motion on the merits, the trial court's order must be[, and hereby is, ] vacated and the case [is] remanded to the trial court with direction that the motion be dismissed. Cook, supra (citation and punctuation omitted). Accord Rutledge, supra ("we vacate the trial court's order [ruling on a motion for an out-of-time appeal] and remand for entry of the appropriate dismissal order"); Lilly v. State, ___ Ga.App. ___ (___ S.E.2d ___) (Case No. A22A0564, decided Mar. 29, 2022).
If Townes 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. He 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.