Kimberly Clark v. State ( 2016 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 19, 2016
The Court of Appeals hereby passes the following order:
A17A0743. KIMBERLY CLARK v. THE STATE.
In 1987, a jury found Kimberly Clark guilty of rape, aggravated sodomy, and
burglary. We affirmed his judgment of conviction on direct appeal. Clark v. State,
186 Ga. App. 882 (369 SE2d 282) (1988). In 2014, Clark filed a motion for an out-
of-time appeal, which the trial court denied. On appeal from that decision, we
vacated and remanded for the trial court to hold an evidentiary hearing to inquire into
the circumstances surrounding Clark’s alleged failure to timely file an appeal and his
delay in filing the motion for an out-of-time appeal.1 Clark v. State, No. A15A1149
(Sept. 3, 2015). On remand, following a hearing, the trial court again denied an out-
of-time appeal, noting that Clark in fact had filed a direct appeal in 1988. Clark now
appeals the trial court’s order on remand. We lack jurisdiction.
“An out-of-time appeal is a judicial creation that serves as the remedy for a
frustrated right of appeal.” Kilgore v. State, 325 Ga. App. 874, 875 (1) (756 SE2d 9)
(2014) (punctuation omitted). Because Clark 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.”); Jackson v. State, 273 Ga. 320 (540 SE2d 612) (2001) (a defendant
“is not entitled to another bite at the apple by way of a second appeal”).
1
The trial court record before this Court at that time did not reflect that Clark
previously had filed a direct appeal from his judgment of conviction.
Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
12/19/2016
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.