David Mercer Stubbs v. State ( 2017 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
February 17, 2017
The Court of Appeals hereby passes the following order:
A17A1076. DAVID MERCER STUBBS v. THE STATE.
In 1991, David Mercer Stubbs was found guilty of simple assault and
kidnapping with bodily injury. On appeal, this Court reversed Stubbs’s assault
conviction, but affirmed his kidnapping conviction. See Stubbs v. State, 220 Ga.
App. 106 (469 SE2d 229) (1996). In August 2016, Stubbs filed a motion for an out-
of-time appeal as to both his assault conviction and his kidnapping conviction. The
trial court denied the motion, and Stubbs filed the instant appeal. We lack
jurisdiction.
An out-of-time appeal is a judicial creation that serves as the remedy for a
frustrated right of appeal. Romano v. State, 297 Ga. 497, 497 (775 SE2d 151) (2015).
The denial of a motion for an out-of-time appeal is directly appealable when the
criminal conviction at issue has not undergone appellate review. Id. However, there
is no right to directly appeal the denial of such a motion filed by a defendant whose
conviction has been affirmed on direct appeal. Richards v. State, 275 Ga. 190, 191
(563 SE2d 856) (2002).
Here, Stubbs’s kidnapping conviction was reviewed and affirmed on direct
appeal, while his assault conviction was reversed on direct appeal. Therefore, he is
not entitled to an out-of-time appeal as to either conviction, and this appeal is hereby
DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
02/17/2017
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.