GLOVER v. STATE (2022)

Court of Appeals of Georgia.

GLOVER v. The STATE.

A22A0729

Decided: April 20, 2022

Clark & Towne, David Edward Clark, for Appellant. Patsy A. Austin-Gatson, District Attorney, Gregory Daniel Mark, Assistant District Attorney, for Appellee.

In 2014, Quamell Malik Glover entered a negotiated plea of guilty to three counts of robbery and was sentenced for those offenses. On February 6, 2020, Glover filed a motion for an out-of-time appeal, which he later amended, claiming ineffective assistance of counsel during his plea hearing. The trial court denied the motion, and Glover appealed. Glover subsequently requested that this Court remand the case to the trial court for completion of the record. We remanded the case, and the trial court entered a consent order admitting various documents into evidence for the purpose of completing the record. The case is now back before us. However, for the reasons explained below, we vacate the trial court's order denying Glover's motion for an out-of-time appeal and remand the case with direction that the trial court dismiss the motion.

Until recently, Georgia courts recognized an out-of-time appeal as the judicially-created remedy for “a criminal defendant [who] demonstrates that his appeal of right has been frustrated by a violation of constitutional magnitude[.]” Collier v. State, 307 Ga. 363, 371 (2), (834 S.E.2d 769) (2019). However, in a recent decision, the Supreme Court of Georgia concluded that a trial court lacks authority to decide a motion for an out-of-time appeal. Cook v. State, 313 Ga. 471, 505 (5), 870 S.E.2d 758 (2022). The Court explained that the out-of-time appeal procedure “is not a legally cognizable vehicle for a convicted defendant to seek relief from alleged constitutional violations” and that its holding “applies to ․ all cases that are currently on direct review or otherwise not yet final.” Id. at 506 (5), 870 S.E.2d 758.

In light of Cook, Glover had no right to file a motion for an out-of-time appeal in the trial court, and the trial court's order denying him permission to pursue an out-of-time appeal was unauthorized. See Cook, 313 Ga. at 506 (5), 870 S.E.2d 758; see also Rutledge v. State, 313 Ga. 460, 870 S.E.2d 720 (2022). The trial court should have dismissed, rather than denied, Glover's motion. See Cook, 313 Ga. at 506 (5), 870 S.E.2d 758. Accordingly, the trial court's order denying the motion for an out-of-time appeal is hereby vacated, and this case is hereby remanded to the trial court, which is directed to enter an order dismissing the motion for an out-of-time appeal.¹ Id.; see also Meheux v. State, 309 Ga. 857, 859, (848 S.E.2d 844) (2020) (when a trial court addresses the merits of a motion it lacks jurisdiction to decide, we must vacate the trial court's order and remand the case with instructions to dismiss the motion).

Judgment vacated and case remanded with direction.

FOOTNOTES

1.   We remind Glover that no appeal will be available from that dismissal order. See Meheux v. State, 309 Ga. 857, 859, n. 5, (848 S.E.2d 844) (2020). His remedy, if any, lies in habeas corpus. See Cook, 313 Ga. at 506 (5), 870 S.E.2d 758; see also Rutledge, 313 Ga. at 461, 870 S.E.2d 720.

Phipps, Senior Appellate Judge.

Doyle, P. J., and Reese, J., concur.