Gino Butler v. State

• Court: Court of Appeals of Georgia
• Decided: January 25, 2016
• Docket: A16A0714
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 13, 2016

The Court of Appeals hereby passes the following order:

A16A0714. GINO BUTLER v. THE STATE.

In 1989, a jury found Gino Butler guilty of aggravated assault and false imprisonment. We affirmed his convictions on direct appeal. Butler v. State, 194 Ga. App. 895 (392 SE2d 324) (1990). In July 2015, Butler filed a motion for an out-of- time appeal, which the trial court denied the following month. Butler then filed this direct appeal. We lack jurisdiction. “An out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal.” Kilgore v. State, 325 Ga. App. 874, 875 (1) (756 SE2d 9) (2014) (punctuation omitted). Because Butler already has had a direct appeal, he is not entitled to an out-of-time appeal. See Richards v. State, 275 Ga. 190, 191 (563 SE2d 856) (2002) (“[T]here is no right to directly appeal the denial of a motion for out-of-time appeal filed by a criminal defendant whose conviction has been affirmed on direct appeal.”); Jackson v. State, 273 Ga. 320 (540 SE2d 612) (2001) (a defendant “is not entitled to another bite at the apple by way of a second appeal”). Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia 01/13/2016 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.