Boney v. State

538 S.E.2d 791, 245 Ga. App. 891, 2000 Fulton County D. Rep. 3638, 2000 Ga. App. LEXIS 1063

Opinion

Blackburn, Presiding Judge.

Allen Boney, Jr., pro se, appeals the trial court’s dismissal of his second motion for out-of-time appeal in which Boney claimed ineffective assistance of appellate counsel. We affirm because Boney’s claim should have bejen raised by a petition for writ of habeas corpus.

Following Boney’s conviction of possession of cocaine with the intent to distribute on June 21,1993, Boney appealed. The conviction was affirmed by this Court in an unpublished opinion, Boney v. State.1 Four years later, Boney filed a pro se motion for out-of-time appeal, raising a claim of ineffective assistance of appellate counsel,² which was dismissed by the trial court. Boney appealed the dismissal to this Court, but his appeal was dismissed due to his failure to timely file the notice of appeal. See Boney v. State.3 Thereafter, Boney filed the present motion for out-of-time appeal with the trial court, raising again a claim of ineffective assistance of appellate counsel, which the trial court dismissed for lack of jurisdiction.

1. In this appeal, Boney contends the trial court erred by dismissing his second motion for out-of-time appeal. We disagree. In our second opinion concerning Boney’s claims, we informed him that an out-of-time appeal is appropriate when a direct appeal was not taken, and that he had already taken a direct appeal. We also informed him that his recourse was a writ of habeas corpus. Boney v. State, 236 Ga. App. 179. The trial court did not err.

2. The State’s motion to dismiss is denied.

Judgment affirmed.

Eldridge and Barnes, JJ, concur. Decided August 29, 2000 Reconsideration dismissed September 14, 2000 Allen Boney, Jr., pro se. Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

Footnotes

1

Boney v. State, 212 Ga. App. XXVII (1994).

2

Boney contended that appellate counsel “failed to raise clearly meritorious arguments on appeal.”

3

Boney v. State, 236 Ga. App. 179 (510 SE2d 892) (1999).