Erik Smith v. State ( 2022 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 08, 2022
The Court of Appeals hereby passes the following order:
A22A1287. ERIK SMITH v. THE STATE.
After entering guilty pleas in 2019 to child molestation and other offenses, Erik
Smith filed a motion for out-of-time appeal in 2021. The trial court denied the
motion, and Smith appealed. This Court vacated the trial court’s order and remanded
that case for the trial court to apply the correct legal standard in deciding the motion.
Case No. A22A0181 (decided Feb. 22, 2022). On remand, the trial court dismissed
the motion for out-of-time appeal based on the recent holding in Cook v. State, 313
Ga. 471 (870 SE2d 758) (2022), and Smith filed this appeal.
In Cook v. State, the Supreme Court determined that a trial court lacks authority
to grant an out-of-time appeal. Cook, 313 Ga. at 506 (5). This holding applies to “all
cases that are currently on direct review or otherwise not yet final.” Id. Smith,
therefore, “had no right to file a motion for an out-of-time appeal in the trial court;
his remedy, if any, lies in habeas corpus.” Rutledge v. State, 313 Ga. 460, 461 (870
SE2d 720) (2022).
Thus, the trial court correctly determined that it did not have jurisdiction to
consider Smith’s motion to file an out-of-time appeal, and the court’s order
dismissing the motion does not present a cognizable basis for an appeal. See
Henderson v. State, 303 Ga. 241, 244 (2) (811 SE2d 388) (2018). Accordingly, this
appeal is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
06/08/2022
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.