Benjamin Eugene Isaac v. State

• Court: Court of Appeals of Georgia
• Decided: January 25, 2016
• Docket: A16D0218
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 19, 2016

The Court of Appeals hereby passes the following order:

A16D0218. BENJAMIN EUGENE ISAAC v. THE STATE.

In 2002, Benjamin Eugene Isaac pled guilty to possession of a firearm by a convicted felon. He subsequently filed a pro se motion for out-of-time appeal, which the trial court denied. Isaac filed this discretionary application seeking appellate review of the trial court’s order. A defendant who pled guilty may be entitled to an out-of-time appeal if a direct appeal was not taken due to ineffective assistance of counsel and the issue on appeal can be resolved by reference to facts on the record. Hicks v. State, 281 Ga. 836, 836- 37 (642 SE2d 31) (2007). “‘The denial of a motion for out-of-time appeal is directly appealable when the criminal conviction at issue has not been the subject of direct appeal.’” Grace v. State, 295 Ga. 657, 658 (763 SE2d 461) (2014). Thus, Isaac has a right of direct appeal. We will grant a timely discretionary application if the lower court’s order is subject to direct appeal. See OCGA § 5-6-35 (j). Accordingly, this application is hereby GRANTED, and Isaac shall have ten days from the date of this order to file a notice of appeal with the trial court. If he has already filed a notice of appeal in the trial court, he need not file a second notice. The clerk of the trial court is DIRECTED to include a copy of this order in the record transmitted to the Court of Appeals. Court of Appeals of the State of Georgia 01/19/2016 Clerk’s Office, Atlanta,____________________ 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.