Roy B. Bright v. State ( 2022 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
April 13, 2022
The Court of Appeals hereby passes the following order:
A22A0626. ROY B. BRIGHT v. THE STATE.
In a previous appeal, we reversed the trial court’s denial of Appellant’s motion
for out-of-time appeal and gave Appellant 30 days from the date this Court’s
remittitur was filed in the trial court in which to file his out-of-time appeal. Bright v.
State, ___ Ga. App. ___ (2) (Case No. A21A1140, decided August 23, 2021)
(unpublished). The remittitur was filed in the trial court on September 8, 2021, and
Bright timely filed his notice of appeal on September 13, 2021.
However, after this appeal was docketed in this Court, the Supreme Court of
Georgia issued Cook v. State, ___ Ga. ___ , ___ (5) (Case No. S21A1270, decided
March 15, 2022), holding that a trial court is “without jurisdiction to decide [a]
motion for out-of-time appeal” on the merits because “there was and is no legal
authority for motions for out-of-time appeal in trial courts.” Id. at ___ (5) (slip op. at
82). Cook also concluded that this holding is to be applied to “all cases that are
currently on direct review or otherwise not yet final.” Id. The Supreme Court also
noted that “we do not undo what has been done with respect to out-of-time appeals
that already have been granted where the ensuing appeal has concluded.” (Emphasis
supplied.) Id. at (3) (e) (slip op. at 77). As this case should be construed as an
“ensuing appeal” which has not yet concluded and it is “otherwise not final,” Cook
applies here. “Appellant therefore had no right to file a motion for out-of-time appeal
in the trial court” Rutledge v. State, ___ Ga. ___, slip op. at 4 (Case No. S21A1036,
decided March 15, 2022), and the trial court should have dismissed his motion instead
of denying it. It follows that in the previous appeal of this case docketed as Case No.
A21A1140, we should have vacated the trial court’s order denying Appellant’s
motion for an out-of-time appeal and remanded for an appropriate dismissal order
instead of reversing the denial of Appellant’s motion and allowing him to file an out-
of-time appeal upon remittitur to the trial court. Accordingly, because Appellant’s
current appeal stems from a procedure that our Supreme Court has specifically
abolished, this appeal must be DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
04/13/2022
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.