Dwayne Cotton v. State

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ April 14, 2022

The Court of Appeals hereby passes the following order:

A22A1105. DWAYNE COTTON v. THE STATE.

After entering a guilty plea, Dwayne Cotton filed a motion for an out-of-time appeal. The trial court denied the motion, and Cotton filed this appeal. The State has filed a “motion to dismiss appeal,” which, in substance, requests that we vacate the trial court’s order and remand with instructions to dismiss the motion. In Cook v. State, the Supreme Court determined that a trial court lacks authority to grant an out-of-time appeal. Cook v. State, ___ Ga. ___, ___ (5) (Case No. S21A1270, decided March 15, 2022). Cotton, therefore, “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. ___, ___ (Case No. S21A1036, decided March 15, 2022). Rather than denying Cotton’s motion, the trial court should have dismissed it. See id. Accordingly, the State’s motion is GRANTED, the trial court’s order denying the motion for an out-of-time appeal is hereby VACATED, and this case is hereby REMANDED to the trial court, which is DIRECTED to enter an order dismissing the motion for an out-of-time appeal.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 04/14/2022 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.