MERILIEN v. STATE (2026)

In 2006, Jean Jocelyn Merilien pleaded guilty to two counts of murder and one count of possession of a firearm during the commission of a felony. He was sentenced to two consecutive terms of life plus five years to serve in prison. He did not appeal.

Just over 19 years later, on September 3, 2025, Merilien sought relief under OCGA § 5-6-39.1, which allows a defendant to move for leave to file an out-of-time notice of appeal within 100 days from the expiration of the time to appeal under certain circumstances, or until June 30, 2026, if the defendant had an out-of-time notice of appeal (or motion seeking one) dismissed under Cook v. State, 313 Ga. 471, 870 S.E.2d 758 (2022). In a summary order, the trial court dismissed the motion for lack of jurisdiction.

That decision was correct. This Court held in Cook that a trial court lacks jurisdiction to consider a motion for leave to file an out-of-time notice of appeal. See Cook, 313 Ga. at 505–06, 870 S.E.2d 758. In response, the General Assembly enacted OCGA § 5-6-39.1, which grants trial courts jurisdiction to consider such motions. See id. § 5-6-39.1(a)(2).¹ But in doing so, that statute also sets time limits for filing such motions: a defendant may move for leave to file an out-of-time notice of appeal “within 100 days from the expiration of the time period for the filing of” a notice of appeal, id. § 5-6-39.1(a)(1), or, if an earlier out-of-time notice of appeal or motion seeking one was dismissed under Cook, until June 30, 2026, id. § 5-6-39.1(a)(1). Like other statutory requirements for obtaining an appeal, these time limits for seeking leave to file a notice of appeal are jurisdictional. See, e.g., Kelly v. State, 311 Ga. 827, 828, 860 S.E.2d 740 (2021); State v. Wheeler, 310 Ga. 72, 73, 849 S.E.2d 401 (2020); Duke v. State, 306 Ga. 171, 186, 829 S.E.2d 348 (2019); Gable v. State, 290 Ga. 81, 85, 720 S.E.2d 170 (2011). And Merilien's motion here meets neither of these time limits, because the time for Merilien to appeal his 2006 convictions expired far longer than 100 days ago, see id. § 5-6-39.1(a)(1), and the record does not show that he had a motion or out-of-time notice of appeal dismissed under Cook, see id. § 5-6-39.1(b). So the trial court lacked jurisdiction to consider Merilien's motion, and it properly dismissed the motion on that basis.

Judgment affirmed.

FOOTNOTES

1.   Code section 5-6-39.1 also grants jurisdiction to consider a motion for leave to file an out-of-time motion for new trial.

Pinson, Justice.

All the Justices concur, except Warren, P.J., not participating.