Quamell Glover v. State ( 2022 )

THIRD DIVISION
DOYLE, P. J.,
REESE, J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
April 20, 2022
In the Court of Appeals of Georgia
A22A0729. GLOVER v. THE STATE.
PHIPPS, Senior Appellate Judge.
In 2014, Quamell Malik Glover entered a negotiated plea of guilty to three
counts of robbery and was sentenced for those offenses. On February 6, 2020, Glover
filed a motion for an out-of-time appeal, which he later amended, claiming ineffective
assistance of counsel during his plea hearing. The trial court denied the motion, and
Glover appealed. Glover subsequently requested that this Court remand the case to
the trial court for completion of the record. We remanded the case, and the trial court
entered a consent order admitting various documents into evidence for the purpose
of completing the record. The case is now back before us. However, for the reasons
explained below, we vacate the trial court’s order denying Glover’s motion for an
out-of-time appeal and remand the case with direction that the trial court dismiss the
motion.
Until recently, Georgia courts recognized an out-of-time appeal as the
judicially-created remedy for “a criminal defendant [who] demonstrates that his
appeal of right has been frustrated by a violation of constitutional magnitude[.]”
Collier v. State, 307 Ga. 363, 371 (2) (834 SE2d 769) (2019). However, in a recent
decision, the Supreme Court of Georgia concluded that a trial court lacks authority
to decide a motion for an out-of-time appeal. Cook v. State, ___ Ga. ___, ___ (5) (slip
op. at 82) (___ SE2d ___) (Case No. S21A1270, decided March 15, 2022). The Court
explained that the out-of-time appeal procedure “is not a legally cognizable vehicle
for a convicted defendant to seek relief from alleged constitutional violations” and
that its holding “applies to . . . all cases that are currently on direct review or
otherwise not yet final.” Id. at ___ (5) (slip op. at 82).
In light of Cook, Glover had no right to file a motion for an out-of-time appeal
in the trial court, and the trial court’s order denying him permission to pursue an out-
of-time appeal was unauthorized. See Cook, ___ Ga. at ___ (5) (slip op. at 82); see
also Rutledge v. State, ___ Ga. ___, (slip op. at 3-4) (Case No. S21A1036, decided
March 15, 2022). The trial court should have dismissed, rather than denied, Glover’s
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motion. See Cook, ___ Ga. at ___ (5) (slip op. at 82). Accordingly, the trial court’s
order denying the motion for an out-of-time appeal is hereby VACATED, and this
case is hereby REMANDED to the trial court, which is DIRECTED to enter an order
dismissing the motion for an out-of-time appeal.1 Id.; see also Meheux v. State, 309
Ga. 857, 859 (848 SE2d 844) (2020) (when a trial court addresses the merits of a
motion it lacks jurisdiction to decide, we must vacate the trial court’s order and
remand the case with instructions to dismiss the motion).
Judgment vacated and case remanded with direction. Doyle, P. J., and Reese,
J., concur.
1
We remind Glover that no appeal will be available from that dismissal order.
See Meheux v. State, 309 Ga. 857, 859, n. 5 (848 SE2d 844) (2020). His remedy, if
any, lies in habeas corpus. See Cook, ___ Ga. at ___ (5) (slip op. at 83); see also
Rutledge, ___ Ga. at ___ (slip op. at 4).
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