MOBUARY v. STATE (2022)

Jason Darrius Mobuary appeals from the trial court's orders denying his pro se motion for an out-of-time appeal and motion for appointment of counsel. In June 2002, a Fulton County grand jury indicted Mobuary for burglary, child molestation, and interference with custody in connection with an inappropriate relationship Mobuary began having with the victim when she was 11 years old and he was 29 years old. The relationship eventually turned sexual; Mobuary touched the victim's breasts, buttocks, and private parts, and the victim reported that she had “sexual relations” with Mobuary and considered Mobuary her boyfriend. In July 2003, as part of a negotiated plea, Mobuary subsequently agreed to plead guilty to one misdemeanor count of interference with custody and one count of enticement of a child for indecent purposes “as an alternative” to the child molestation charge; the State nolle prossed the burglary charge.

On July 3, 2018, Mobuary, representing himself, filed a motion for an out-of-time appeal, a motion for an evidentiary hearing, and a motion for appointment of counsel to assist him on his first appeal. Without holding an evidentiary hearing, the trial court denied Mobuary's motion for an out-of-time appeal, concluding that Mobuary admitted during his guilty plea and at sentencing that he was satisfied with plea counsel's representation. The trial court also summarily denied Mobuary's motion for appointment of counsel. Mobuary appeals both orders.

1. Mobuary contends the trial court erred in denying his motion for an out-of-time appeal without conducting an evidentiary hearing. Given the Supreme Court of Georgia's recent decision in Cook v. State, 313 Ga. 471, 870 S.E.2d 758 (2022), this argument is without merit. In that case, the Supreme Court 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 allowed in King [v. State, 233 Ga. 630, 212 S.E.2d 807 (1975)] and Furgerson [v. State, 234 Ga. 594, 595, 216 S.E.2d 845 (1975)], approved in Rowland [v. State, 264 Ga. 872, 874-875 (2), 452 S.E.2d 756 (1995)], and followed in other cases, is not a legally cognizable vehicle for a convicted defendant to seek relief for alleged constitutional violations. Our holding applies to this case and to all cases that are currently on direct review or otherwise not yet final.

Id. at 506 (5), 870 S.E.2d 758. Mobuary “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). Based on Cook, we therefore conclude that the trial court should have dismissed, rather than denied, the motion, and we vacate the trial court's order and remand for entry of the appropriate dismissal order. See Cook, 313 Ga. at 506 (5), 870 S.E.2d 758.

2. Given the Supreme Court's holding in Cook that there is no legal authority for motions for out-of-time appeal in the trial courts, Mobuary's claim that the trial court erred in denying his motion for appointment of counsel to assist him in his out-of-time appeal is moot.

Judgment vacated and case remanded with direction.

Brown, Judge.

Rickman, C. J., and Dillard, P. J., concur.