Erik Smith v. State

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ June 08, 2022

The Court of Appeals hereby passes the following order:

A22A1287. ERIK SMITH v. THE STATE.

After entering guilty pleas in 2019 to child molestation and other offenses, Erik

Smith filed a motion for out-of-time appeal in 2021. The trial court denied the

motion, and Smith appealed. This Court vacated the trial court’s order and remanded

that case for the trial court to apply the correct legal standard in deciding the motion.

Case No. A22A0181 (decided Feb. 22, 2022). On remand, the trial court dismissed

the motion for out-of-time appeal based on the recent holding in Cook v. State, 313

Ga. 471 (870 SE2d 758) (2022), and Smith filed this appeal.

In Cook v. State, the Supreme Court determined that a trial court lacks authority

to grant an out-of-time appeal. Cook, 313 Ga. at 506 (5). This holding applies to “all

cases that are currently on direct review or otherwise not yet final.” Id. Smith,

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, 313 Ga. 460, 461 (870

SE2d 720) (2022). Thus, the trial court correctly determined that it did not have jurisdiction to

consider Smith’s motion to file an out-of-time appeal, and the court’s order

dismissing the motion does not present a cognizable basis for an appeal. See

Henderson v. State, 303 Ga. 241, 244 (2) (811 SE2d 388) (2018). Accordingly, this

appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 06/08/2022 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.