CHARLES v. STATE (2026)

In 1997, Appellant Ken Clint Patrick Charles pleaded guilty to malice murder and other crimes and was sentenced to life plus five years to serve in prison.¹ Charles did not appeal. In June 2025, Charles filed a motion for leave to file an out-of-time notice of appeal under OCGA § 5-6-39.1, and the trial court granted Charles's motion in March 2026. On March 4, 2026, Charles filed a notice of appeal of his 1997 convictions and sentences entered via guilty plea, and the case was docketed in this Court on March 20, 2026.

In May 2025, the General Assembly enacted a new statutory procedure providing the “criteria” for trial courts “to consider in determining whether to grant leave to file an out-of-time notice of appeal.” Burkett v. State, ––– Ga. ––––, ––––, 930 S.E.2d 549 (2026) (citing 2025 Ga. L. 252 §§ 1-3). See OCGA § 5-6-39.1. By its express terms, OCGA § 5-6-39.1 gives trial courts jurisdiction to consider a defendant's motion for leave to file an out-of-time notice of appeal, but only if that motion is filed in accordance with the following time limits: (1) “within 100 days from the expiration of the time period for the filing of such ․ notice,” OCGA § 5-6-39.1(a)(1); or (2) until June 30, 2026, if the defendant previously had either an out-of-time notice of appeal or “a motion seeking an out-of-time ․ notice of appeal” dismissed under Cook v. State, 313 Ga. 471, 870 S.E.2d 758 (2022), OCGA § 5-6-39.1(b).

Relying on this statute, Charles moved for leave to file an out-of-time notice of appeal on June 5, 2025, under OCGA § 5-6-39.1. After a hearing, the trial court granted Charles's motion on March 4, 2026, pursuant to OCGA § 5-6-39.1(a)(1)(D),² and on the same date, Charles filed a notice of appeal to this Court. As explained below, because Charles failed to apply for discretionary review of his guilty plea as required by OCGA § 5-6-35(a)(5.3), this Court lacks appellate jurisdiction to consider his appeal.

“In the same act that created the new procedure for seeking leave to file an out-of-time motion for new trial or notice of appeal” codified in OCGA § 5-6-39.1, the legislature also amended OCGA § 5-6-35—the statute governing “the kinds of appeals that must be taken by application for discretionary appeal”—to require the filing of a discretionary application “to bring ‘direct appeals from guilty pleas.’ ” Burkett, ––– Ga. at ––––, 930 S.E.2d 549 (citing Ga. L. 2025 at § 1–2). See OCGA § 5-6-35(a)(5.3). In accordance with OCGA § 5-6-35(a)(5.3), “direct appeals from guilty pleas” must be appealed by filing an application for discretionary appeal, and “[a]ny such applications must be filed within 30 days of the entry of the challenged decision.” Burkett, ––– Ga. at ––––, 930 S.E.2d 549 (citing OCGA § 5-6-35(d)). If such a discretionary application is not filed within that timeframe, “the appellate court in which the application [was] filed must dismiss the application for lack of jurisdiction.” Id. And, while OCGA § 5-6-39.1 permits a defendant to move for leave to file an out-of-time notice of appeal under certain circumstances, this statute “says nothing about out-of-time applications for discretionary appeal.” Id. at –––– – ––––, 930 S.E.2d 549 (citing OCGA § 5-6-39.1(a)(2) (“If the judge grants [the motion for leave to file an out-of-time motion for new trial or notice of appeal], the defendant shall have 30 days to file an out-of-time motion for new trial or notice of appeal.”)). Accordingly,

[i]f a defendant has missed the jurisdictional deadline to file an application under OCGA § 5-6-35 to seek a direct appeal from his guilty plea, he has missed the opportunity to appeal his guilty plea, notwithstanding the availability of leave to file an out-of-time notice of appeal under OCGA § 5-6-39.1.

Id. at ––––, 930 S.E.2d 549.

Here, because Charles seeks to directly appeal his guilty plea, which required an application for discretionary appeal under OCGA § 5-6-35(a)(5.3); because OCGA § 5-6-35(d) required any such application to have been filed within 30 days of the challenged decision, which did not happen in this case; and because, under its express language, OCGA § 5-6-39.1 does not authorize out-of-time applications for discretionary appeal, this Court does not have jurisdiction to consider Charles's appeal, and his appeal must be dismissed. See Burkett, ––– Ga. at ––––, 930 S.E.2d 549. See also Gable v. State, 290 Ga. 81, 82, 720 S.E.2d 170 (2011) (concluding that the appellate court lacked jurisdiction over a discretionary appeal from the denial of a defendant's extraordinary motion for new trial, where the application for discretionary appeal was not filed within 30 days of order denying relief).

Appeal dismissed.

FOOTNOTES

1.   In June 1997, a Bartow County grand jury indicted Charles for malice murder, aggravated assault, and possession of a firearm during the commission of a felony. In November 1997, Charles entered a negotiated guilty plea to all three counts of the indictment and was sentenced to life without the possibility of parole on the malice murder count and five years to run consecutively on the possession of a firearm count. The aggravated assault count merged with the malice murder count.

2.   It is not clear to us that the trial court had jurisdiction to grant Charles's motion for leave to file the underlying out-of-time notice of appeal because the record shows that the motion was filed well outside the 100-day timeframe required by subsection (a)(1). See OCGA § 5-6-39.1(a)(1) (“[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 such ․ notice[.]”). However, in light of our ultimate holding that we lack appellate jurisdiction in this case, we need not address that potential issue of the trial court's jurisdiction.

LaGrua, Justice.

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