Wheeler v. State

499 S.E.2d 629 (1998) 269 Ga. 547

WHEELER
v.
The STATE.

No. S98A0820.

Supreme Court of Georgia.

May 4, 1998. Reconsideration Denied June 26, 1998.

John D. Wheeler, Oglethorpe, for John Dean Wheeler.

H. Lamar Cole, Dist. Atty., Valdosta, Anthony Scott Gunn, Asst. Dist. Atty., Moultrie, for the State.

BENHAM, Chief Justice.

Facing prosecution for a number of charges arising from the September 1996 murder of a woman and the aggravated assault of her male companion, appellant John Dean Wheeler pled guilty to the murder charge in February 1997 and was sentenced to life imprisonment.^[1] Nine months later, in December 1997, appellant filed a motion for out-of-time appeal in which he contended that his appellate rights had not been exercised in a timely fashion because his attorney did not file an appeal. Appellant brings this appeal from the trial court's denial of his motion.

As the movant for an out-of-time appeal, appellant had to establish a good and sufficient reason which entitled him to an out-of-time appeal. Smith v. State, 266 Ga. 687, 470 S.E.2d 436 (1996). To meet this burden of proof, appellant had to set forth the questions he would raise should the appeal be granted, and show that the questions could be resolved by facts appearing in the appellate record. Id. Appellant has alleged only that his attorney's inadequate performance was the reason why no timely appeal was filed; appellant has not set forth the questions he would raise in an out-of-time appeal and that the questions could be resolved by facts in the record. The trial court did not err when it denied the motion for outof-time appeal. Id.

Judgment affirmed.

All the Justices concur.

NOTES

[1] The trial court granted the District Attorney's motion to nol pros the remaining charges.