Toray D. Porter v. State ( 2022 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
April 07, 2022
The Court of Appeals hereby passes the following order:
A22A1230. TORAY D. PORTER v. THE STATE.
After entering a guilty plea in 2012 to armed robbery, Toray D. Porter filed a
motion for an out-of-time appeal in December 2021. The trial court denied the
motion, and Porter filed this direct appeal.1
In Cook v. State, the Supreme Court determined that a trial court lacks authority
to grant an out-of-time appeal. Cook v. State, ___ Ga. ___, ___ (5) (Case No.
S21A1270, decided March 15, 2022). This holding is to be applied to “all cases that
are currently on direct review or otherwise not yet final.” Id. Porter, therefore, “had
no right to file a motion for an out-of-time appeal in the trial court; his remedy, if any,
lies in habeas corpus.” Rutledge v. State, ___ Ga. ___, ___ (Case No. S21A1036,
decided March 15, 2022). Rather than denying Porter’s motion, the trial court should
have dismissed it. See id.
1
Porter also filed a timely application for discretionary appeal from the same
trial court order. Because both filings were from the same order and that order was
subject to direct appeal, we dismissed the application. See OCGA § 5-6-35 (j). Case
No. A22D0314 (dismissed Apr. 7, 2022).
Accordingly, the trial court’s order denying the motion for out-of-time appeal
is hereby VACATED, and this appeal is hereby REMANDED to the trial court, which
is DIRECTED to enter an order dismissing the motion for out-of-time appeal.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
04/07/2022
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.