Earl Hopper v. State

FIRST DIVISION
BARNES, P. J.,
BROWN and HODGES, JJ.
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 21, 2022
In the Court of Appeals of Georgia
A22A0461. HOPPER v. THE STATE.
BROWN, Judge.
Following a jury trial in 2014, Earl Hopper was convicted of rape, child
molestation, enticing a child for indecent purposes, and furnishing alcohol to a minor.
Following his conviction, Hopper’s trial counsel filed a timely motion for new trial.
In 2016, Hopper filed a pro se motion in arrest of judgment, which he later amended
in 2017. After Hopper filed a Faretta waiver seeking to represent himself, the trial
court held a hearing and allowed Hopper to proceed pro se. On August 10, 2017, the
trial court issued an order denying the motion for new trial and the motion in arrest
of judgment. On October 23, 2017, Hopper filed a notice of appeal from the August
10, 2017 order. In January 2019, this Court granted the State’s motion to dismiss the
appeal, concluding that it was untimely. Nearly two months later, Hopper filed a
motion for an out-of-time appeal, which the trial court denied. Hopper appealed the
denial, and in Hopper v. State, 355 Ga. App. 269, 269-273 (843 SE2d 919) (2020),
this Court ultimately concluded that the trial court erred in denying the motion. On
remittitur, the trial court granted Hopper’s motion for an out-of-time appeal, and
Hopper filed a timely notice of appeal.
In Cook v. State, ___ Ga. ___ (5) (___ SE2d ___) (Case No. S21A1270,
decided March 15, 2022), the Supreme Court held
that there was and is no legal authority for motions for out-of-time
appeal in trial courts and that the out-of-time appeal procedure allowed
in King [v. State, 233 Ga. 630 (212 SE2d 807) (1975)] and Furgerson
[v. State, 234 Ga. 594, 595 (216 SE2d 845) (1975)], approved in
Rowland [v. State, 264 Ga. 872, 874-875 (452 SE2d 756) (1995)], and
followed in other cases, is not a legally cognizable vehicle for a
convicted defendant to seek relief from alleged constitutional violations.
Our holding applies to this case and to all cases that are currently on
direct review or otherwise not yet final.
Id. at ___ (5). The Court 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). Further, “pending and future
motions for out-of-time appeals in trial courts should be dismissed, and trial court
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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). As this case should be construed as an “ensuing appeal” and it is “otherwise not
final,” Hopper “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. ___ (___
SE2d ___) (Case No. S21A1036, decided March 15, 2022). Based on Cook, the
motion should have been dismissed. We therefore vacate the trial court’s order and
remand for entry of the appropriate dismissal order. See id.Judgment vacated and case remanded with direction. Barnes, P. J., and
Hodges, J., concur.
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