Antonio Taylor 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
A22A0409. TAYLOR v. THE STATE.
PER CURIAM.
Antonio Taylor appeals from the denial of his motion for a new trial, which he
filed in the trial court pursuant to a granted motion for an out-of-time appeal. Recent
precedent from the Supreme Court, however, precludes us from addressing the merits
of this appeal.
Following a September 2017 bench trial, the trial court found Taylor guilty of
entering an automobile, possession of tools for the commission of a crime, and
misdemeanor possession of marijuana, and sentenced him that month as a recidivist
under OCGA § 17-10-7 (a) and (c) to ten years with seven to be served in
confinement and the balance to be served on probation. In June 2019, Taylor filed a
motion to correct an illegal sentence, or in the alternative, a motion for an out-of-time
appeal. The trial court conducted a hearing during which it limited its consideration
to Taylor’s illegal sentence argument and denied the motion. Taylor subsequently
filed an appeal of the denial order, which this Court dismissed for lack of jurisdiction.
See Case No. A20A1865 (decided May 26, 2020). On remand, the trial court granted
Taylor’s pending motion for an out-of-time appeal, and Taylor then filed a motion for
a new trial. Following an evidentiary hearing, the trial court denied the motion for a
new trial on the merits, and this appeal ensued.
Recently, the Supreme Court eliminated the out-of-time appeal procedure in
trial courts, 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.” Cook v. State, ___ Ga. ___, ___ (5)
(___ SE2d ___) (2022 Ga. LEXIS 65, 2022 WL 779746) (slip op. at 82) (Case No.
S21A1270, decided March 15, 2022). Cook also concluded that this holding applies
to “all cases that are currently on direct review or otherwise not yet final[,]” id., and
directed that “pending and future motions for out-of-time appeals in trial courts
should be dismissed, and trial court orders that have decided such motions 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 80-81).
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In light of Cook, Taylor had no right to file a motion for an out-of-time appeal
in the trial court. Rutledge v. State, ___ Ga. ___, ___ (___ SE2d ___) (2022 Ga.
LEXIS 64, 2022 WL 779586) (slip op. at 4) (Case No. S21A1036, decided March 15,
2022). Accordingly, the trial court’s order granting Taylor’s motion for an out-of-time
appeal is vacated, and this case is remanded for the entry of an order dismissing
Taylor’s motion. Additionally, given that Taylor’s motion for an out-of-time appeal
was granted in this case, the trial court is directed to vacate any subsequent rulings
on filings that the court lacked jurisdiction to decide without the granted out-of-time
appeal, such as the May 20, 2021 order denying Taylor’s otherwise untimely motion
for a new trial.
Judgment vacated and case remanded with direction. Division Per Curiam. All
Judges concur.
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