Robert Campbell v. State ( 2020 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 09, 2020
The Court of Appeals hereby passes the following order:
A21D0067. ROBERT CAMPBELL v. THE STATE.
After a jury trial, Robert Campbell was found guilty of hijacking a motor
vehicle, aggravated assault, possession of a firearm during the commission of these
crimes, four counts of armed robbery, possession of a firearm during the commission
of one of the armed robberies, and criminal attempt to commit the offense of armed
robbery. This Court affirmed his convictions on direct appeal. Campbell v. State, 314
Ga. App. 299 (724 SE2d 24) (2012). Campbell filed a pro se motion for out-of-time
appeal and motion requesting judicial review, which the trial court denied. Campbell
then filed this application for discretionary appeal to challenge the trial court’s order.
However, we lack jurisdiction.
The denial of a motion for an out-of-time appeal is directly appealable when
the conviction at issue has not been the subject of a direct appeal. See English v.
State, 307 Ga. App. 544, 545 n.4 (705 SE2d 667) (2010), overruled in part on other
grounds by Collier v. State, 307 Ga. 363 (834 SE2d 769) (2019); Lunsford v. State,
237 Ga. App. 696, 696 (515 SE2d 198) (1999). Generally, if a party applies for
discretionary review of a directly appealable order, this Court grants the application
under OCGA § 5-6-35 (j). However, as noted above, Campbell’s convictions were
affirmed on direct appeal.
“An out-of-time appeal is a judicial creation that serves as the remedy for a
frustrated right of appeal.” (Citation omitted.) Kilgore v. State, 325 Ga. App. 874, 875
(1) (756 SE2d 9) (2014). Because Campbell 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, 320 (540 SE2d 612) (2001) (a defendant “is
not entitled to another bite at the apple by way of a second appeal”). Accordingly, this
application is hereby DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
10/09/2020
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.