Daniel Delane Cook v. State

• Court: Court of Appeals of Georgia
• Decided: March 22, 2023
• Docket: A23A1153
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ March 22, 2023

The Court of Appeals hereby passes the following order:

A23A1153. DANIEL DELANE COOK v. THE STATE.

On March 17, 2016, Daniel Delane Cook pled guilty to armed robbery, possession of a firearm during commission of a felony, possession of a firearm by a convicted felon, and fleeing/attempting to elude a police officer. Three years later, in May 2019, Cook filed an extraordinary motion for new trial. On March 20, 2020, the trial court denied the motion. Cook filed an application for discretionary appeal, which this Court denied. See Case No. A20D0419 (decided July 15, 2020). After filing the application, Cook filed numerous motions in the trial court, including a motion to withdraw his guilty plea, another extraordinary motion for new trial, a “Motion of Appeal,” a motion to vacate or set aside his sentence, a motion for new trial, and a second motion to withdraw his guilty plea. No order on any of these motions appears in the record. On January 3, 2023, Cook filed a motion for out-of- time appeal.1 On that same day, Cook filed a notice of appeal. In his notice of appeal, Cook does not specify which order he is appealing. Rather, he states that he was not informed of his right to appeal, that his trial counsel instructed him to make a false statement, and that his trial counsel waived a competency hearing without his permission. We, however, lack jurisdiction. A notice of appeal must be filed within 30 days of entry of the order or

1 We note that the Georgia Supreme Court recently determined that a trial court lacks authority to grant an out-of-time appeal, and that any remedy involving an out- of-time appeal lies in habeas corpus. Rutledge v. State, 313 Ga. 460, 461 (870 SE2d 720) (2022); Cook v. State, 313 Ga. 471, 506 (5) (870 SE2d 758) (2022). judgment sought to be appealed. OCGA § 5-6-38 (a). “The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon an appellate court.” Perlman v. Perlman, 318 Ga. App. 731, 739 (4) (734 SE2d 560) (2012) (punctuation omitted). Thus, to the extent Cook seeks to appeal his March 2016 judgment of conviction, the instant appeal is untimely. The notice of appeal is also untimely as to the March 20, 2020 Order. Moreover, Cook has already appealed that March 2020 order, such that further review of that ruling is barred. See Northwest Soc. & Civic Club, Inc. v. Franklin, 276 Ga. 859, 860 (583 SE2d 858) (2003). Likewise, any appeal from the trial judge’s January 19, 2021 order recusing himself from Cook’s case is untimely. Thus, Cook’s notice of appeal is not timely as to any trial court order in the record. Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 03/22/2023 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.