Skip to main content


Court of Appeals of Georgia.



Decided: April 22, 2022

The Roch Law Firm, Donald Robert Roch II, for Appellant. Timothy Grady Vaughn, District Attorney, Eastman, Keely Kight Pitts, Assistant District Attorney, for Appellee.

This case requires us to administer our Supreme Court's decision in Cook v. State, 313 Ga. 471, 870 S.E.2d 758 (2022). Under Cook, “the trial court out-of-time appeal procedure is not a legally cognizable vehicle for a convicted defendant to seek relief for alleged constitutional violations.” Id. at 472, 870 S.E.2d 758. That determination applies to “all cases that are currently on direct review or otherwise not yet final.” Id. at 506 (5), 870 S.E.2d 758. So in pending cases where our jurisdiction had been invoked by an order of the trial court entered under that procedure, “the trial court's order must be vacated and the case remanded to the trial court with direction that the motion be dismissed.” Id.

In August 2006 Armstrong was tried and convicted of sale of cocaine and possession of cocaine with intent to distribute. Armstrong's retained trial counsel filed a timely motion for new trial, which was amended in December 2006. But counsel thereafter allowed the motion to languish. Over the ensuing years Armstrong wrote the trial court repeatedly to complain about the delay. Eventually, after the retirement of the original trial judge, an order was entered in July 2018 noting that Armstrong's retained counsel had filed nothing after August 2006 and ordering that Armstrong be represented by a public defender.

The new-trial motion was thereafter briefed and heard in open court. It was denied on the merits in an order entered in December 2019.

But the lawyer who briefed and argued the new-trial motion failed to file a timely notice of appeal. When that omission was brought to her attention, she filed a motion accepting responsibility and requesting an out-of-time appeal.

The motion was granted. New appellate counsel filed a timely notice of appeal. The case was docketed here. The briefs were filed. The appeal was in line to be decided. But before we could decide it, Cook was handed down.

Under Cook, we are without jurisdiction. Armstrong's “remedy, if any, lies in habeas corpus.” Id. at 506 (5), 870 S.E.2d 758. See OCGA § 9-14-1 et seq. The Habeas Corpus Act

establishes that the superior court in the county of the defendant's detention has “exclusive jurisdiction” over the defendant's habeas petition, OCGA § 9-14-43; contains requirements for what petitions must include, OCGA § 9-14-44, and how they must be served, OCGA § 9-14-45; establishes deadlines for answering a petition, OCGA § 9-14-47; and lays out how hearings must operate, OCGA § 9-14-48, what the habeas court must put in writing to support its judgment, OCGA § 9-14-49, and how that judgment must be appealed, OCGA § 9-14-52. The Act imposes definite time limits within which petitions must be brought: it requires a defendant to challenge a felony conviction not involving a death sentence within four years of “the conclusion of direct review or the expiration of the time for seeking such review” and to challenge a misdemeanor within one year, OCGA § 9-14-42 (c) — statutory limitations periods that are not subject to equitable tolling, see Stubbs v. Hall, 308 Ga. 354, 369, 840 S.E.2d 407 (2020). It provides for a statutory defense of laches, OCGA § 9-14-48 (e), and contains a bar on successive habeas petitions, OCGA § 9-14-51. Moreover, the Civil Practice Act, OCGA § 9-11-1 et seq., generally applies to habeas corpus proceedings. See OCGA § 9-11-81; Mitchell v. Forrester, 247 Ga. 622, 623, 278 S.E.2d 368 (1981) (“[T]he CPA now applies to habeas corpus applications.”).

Cook, 313 Ga. at 493 (3) (d), 870 S.E.2d 758.

So we vacate the trial court's order granting the out-of-time appeal and remand with direction that the motion for out-of-time appeal be dismissed.

Judgment vacated and case remanded with direction.

McFadden, Presiding Judge.

Gobeil and Pinson, JJ., concur.

Was this helpful?

Thank you. Your response has been sent.

Welcome to FindLaw's Cases & Codes

A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.

Go to Learn About the Law

Docket No: A22A0334

Decided: April 22, 2022

Court: Court of Appeals of Georgia.

Get a profile on the #1 online legal directory

Harness the power of our directory with your own profile. Select the button below to sign up.

Sign up

Learn About the Law

Get help with your legal needs

FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.

Learn more about the law
Copied to clipboard