LILLY v. STATE (2022)

After the trial court granted his motion for an out-of-time appeal, James Lilly seeks review of the denial of his motion for new trial after a jury found him guilty of rape and exploiting an elder person. On appeal, he argues that (1) the trial court erred by allowing into evidence statements by the victim's daughters and a nurse who treated another witness; and (2) the evidence was insufficient to support his convictions. Recent precedent from the Supreme Court of Georgia, however, precludes us from hearing this appeal.

During the pendency of this appeal, the Supreme Court of Georgia decided the cases of Cook v. State, 313 Ga. 471, 870 S.E.2d 758 (2022), and Rutledge v. State, 313 Ga. 460, 870 S.E.2d 720 (2022). In Cook, the Supreme Court determined that a standalone motion for an out-of-time appeal “is not a legally cognizable vehicle for a convicted defendant to seek relief for alleged constitutional violations” and that the sole remedy for a criminal defendant whose attempt to appeal was frustrated by ineffective assistance of counsel is to pursue such a claim through a petition for habeas corpus. Id. at 506 (5), 870 S.E.2d 720; slip op. at 81-83. In so holding, the Supreme Court directed that its decision in Cook applies to all cases in the “appellate pipeline” and that any trial court orders that have decided motions for out-of-time appeals on the merits “should be vacated if direct review of the case remains pending or if the case is otherwise not final.” (Punctuation omitted.) Id. at 505 (4), 870 S.E.2d 720; slip op. at 78-81. In Rutledge, the Supreme Court applied Cook and vacated the denial of a motion for an out-of-time appeal and remanded for the trial court to dismiss the motion for lack of jurisdiction. Id. at 461, 870 S.E.2d 720.

In light of this precedent, we must vacate the trial court's grant of Lilly's motion for an out-of-time appeal because it was “not a legally cognizable vehicle for a convicted defendant to seek relief for alleged constitutional violations.” Cook, supra, 313 Ga. at 506 (5), 870 S.E.2d 758. Additionally, “we cannot construe [Lilly's motion for an out-of-time appeal] as a habeas petition because it was filed in the convicting court rather than in the county in which he is incarcerated.” (Citation and punctuation omitted.) Jones v. State, 322 Ga. App. 269, 271 (1), 745 S.E.2d 1 (2013). Accordingly, we vacate the trial court's order granting Lilly's motion for an out-of-time appeal and remand for the trial court to dismiss the motion for lack of jurisdiction. We express no opinion on the merits of Lilly's challenge to his convictions.

Judgment vacated and case remanded.

Miller, Presiding Judge.

Rickman, C. J., and Pipkin, J., concur.