Timothy A. Henry v. State ( 2016 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
May 25, 2016
The Court of Appeals hereby passes the following order:
A16A1736. TIMOTHY A. HENRY v. THE STATE.
In February 2010, Timothy A. Henry was convicted by a jury of two counts of
aggravated child molestation, two counts of aggravated sodomy, and one count of
child molestation. After the trial court granted Henry’s motion for out-of-time appeal,
his convictions were affirmed by this Court. See Henry v. State, 316 Ga. App. 132(729 SE2d 429) (2012). In September 2015, Henry filed another motion for out-of-
time appeal, which the trial court denied. Henry then filed this direct appeal.
“An out-of-time appeal is a judicial creation that serves as the remedy for a
frustrated right of appeal. . . . [I]t is not a remedy available to a criminal defendant
whose conviction has been reviewed by an appellate court on direct appeal since that
defendant is not entitled to a second direct appeal from his judgment of conviction.”
Milliken v. State, 259 Ga. App. 144, 145 (575 SE2d 910) (2003) (punctuation and
footnote omitted). Because Henry already has had a direct appeal, he is not entitled
to an out-of-time appeal. See Richards v. State, 275 Ga. 190, 191 (563 SE2d 856)
(2002) (“[T]here is no right to directly appeal the denial of a motion for out-of-time
appeal filed by a criminal defendant whose conviction has been affirmed on direct
appeal.”). Accordingly, this appeal is hereby DISMISSED.
Court of Appeals of the State of Georgia
05/25/2016
Clerk’s Office, Atlanta,____________________
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.