Danny Wilson v. State ( 2022 )

gCourt of Appeals
of the State of Georgia
ATLANTA,____________________
June 02, 2022
The Court of Appeals hereby passes the following order:
A22A0118 & A22A0148. WILSON v. THE STATE.
In November 1979, a DeKalb County jury found Appellant Danny Wilson
guilty of rape and burglary , and he was sentenced to concurrent 10-year terms of
imprisonment. In April 2021, Appellant filed what was at least his fourth motion for
an out-of-time appeal; in support of this motion, Appellant filed an affidavit and a
purported “notice of appeal.” In a May 2021 order, the trial court dismissed the
motion. On June 1, 2021, Appellant timely filed a notice of appeal from the May 2021
dismissal order. Given the imprecise nature of Appellant’s filings, this Court
docketed both the April 2021 and June 2021 notices of appeal as separate appeals;
however, the record and briefs before this Court suggest that there is a single appeal
from the May 2021 dismissal order, and, thus, we consolidate these appeals for
disposition.1
Putting aside the issue of res judicata – which the trial court rightly raised in
its May 2021 order – in Cook v. State, ___ Ga. ___, ___ (___ SE2d ___) (2022 Ga.
LEXIS 65, 2022 WL 779746) (Case No. S21A1270, decided March 15, 2022), our
Supreme Court eliminated the judicially created out-of-time appeal procedure in trial
1
Though the April 2021 filing was styled as a “notice of appeal” from
Appellant’s 1979 convictions, the language of that “notice of appeal” suggests that
it was intended to accompany and support his motion for an out-of-time appeal rather
than actually trigger an appeal, which would have been patently untimely and would
have ceased all proceedings in the trial court. See Ricks v. State, 303 Ga. 567, 567-
568 (814 SE2d 318) (2018). Thus, there is but one appeal before this Court.
courts, holding that a trial court is “without jurisdiction to decide [a] motion for
out-of-time appeal” on the merits because “there was and is no legal authority for
motions for out-of-time appeal in trial courts.” Id. at (5) (slip op. at 82). Cook also
concluded that this holding is to be applied to “all cases that are currently on direct
review or otherwise not yet final.” Id. Thus, the dismissal of Appellant’s motion for
an out-of-time appeal was ultimately proper. Further, because the law does not
recognize a motion for an out-of-time appeal, that motion is a nullity, and Appellant
has nothing cognizable to appeal. See Henderson v. State, 303 Ga. 241, 244 (811
SE2d 388) (2018). Accordingly, this appeal must be dismissed. Id.Finally, we note that if Appellant believes that he was unconstitutionally
deprived of his right to appeal from his 1979 convictions, he may be able to pursue
relief for that claim through a petition for a writ of habeas corpus, along with any
other claims alleging deprivation of his constitutional rights in the proceedings that
resulted in his conviction. See OCGA § 9-14-41 et seq. Appellant should be aware
of the possible application of the restrictions that apply to such habeas corpus filings,
such as the time deadlines provided by OCGA § 9-14-42 (c) and the limitation on
successive petitions provided by OCGA § 9-14-51.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
06/02/2022
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.