James Lilly v. State ( 2022 )

SECOND DIVISION
RICKMAN, C. J.,
MILLER, P. J., PIPKIN, J.
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
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
March 29, 2022
In the Court of Appeals of Georgia
A22A0564. LILLY v. THE STATE.
MILLER, Presiding Judge.
After the trial court granted his motion for an out-of-time appeal, James Lilly
seeks review of the denial of his motion for new trial after a jury found him guilty of
rape and exploiting an elder person. On appeal, he argues that (1) the trial court erred
by allowing into evidence statements by the victim’s daughters and a nurse who
treated another witness; and (2) the evidence was insufficient to support his
convictions. Recent precedent from the Supreme Court of Georgia, however,
precludes us from hearing this appeal.
During the pendency of this appeal, the Supreme Court of Georgia decided the
cases of Cook v. State, ___ Ga. ___ (Case No. S21A1270) (Mar. 15, 2022), and
Rutledge v. State, ___ Ga. ___ (Case No. S21A1036) (Mar. 15, 2022). In Cook, the
Supreme Court determined that a standalone motion for an out-of-time appeal “is not
a legally cognizable vehicle for a convicted defendant to seek relief from alleged
constitutional violations” and that the sole remedy for a criminal defendant whose
attempt to appeal was frustrated by ineffective assistance of counsel is to pursue such
a claim through a petition for habeas corpus. Id. at ___ (5); slip op. at 81-83. In so
holding, the Supreme Court directed that its decision in Cook applies to all cases in
the “appellate pipeline” and that any trial court orders that have decided motions for
out-of-time appeals on the merits “should be vacated if direct review of the case
remains pending or if the case is otherwise not final.” Id. at ___ (4); slip op. at 78-81.
In Rutledge, the Supreme Court applied Cook and vacated the denial of a motion for
an out-of-time appeal and remanded for the trial court to dismiss the motion for lack
of jurisdiction. Rutledge, supra, ___ Ga. at ___; slip op. at 3-4.
In light of this precedent, we must vacate the trial court’s grant of Lilly’s
motion for an out-of-time appeal because it was “not a legally cognizable vehicle for
a convicted defendant to seek relief from alleged constitutional violations.” Cook,
supra, ___ Ga. at ___ (5); slip op. at 81-83. Additionally, “we cannot construe [Lilly’s
motion for an out-of-time appeal] as a habeas petition because it was filed in the
convicting court rather than in the county in which he is incarcerated.” (Citation
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omitted.) Jones v. State, 322 Ga. App. 269, 271 (1) (745 SE2d 1) (2013).
Accordingly, we vacate the trial court’s order granting Lilly’s motion for an out-of-
time appeal and remand for the trial court to dismiss the motion for lack of
jurisdiction. We express no opinion on the merits of Lilly’s challenge to his
convictions.
Judgment vacated and case remanded. Rickman, C. J., and Pipkin, J., concur.
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