Howard Stephens v. State

Opinion

Court of Appeals of the State of Georgia

ATLANTA,__________________ January 09, 2013

The Court of Appeals hereby passes the following order:

A13A0824. HOWARD STEPHENS v. THE STATE.

In July of 1998, Howard Stephens was convicted of aggravated assault and armed robbery. We affirmed his convictions on appeal in an unpublished opinion. See Stephens v. State, Case No. A99A1477 (decided August 19, 1999). In July of 2012, Stephens filed a motion for an out-of-time appeal. The trial court denied the motion in an order entered on September 11, 2012, and Stephens filed his notice of appeal on October 30, 2012. We lack jurisdiction. “An out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal. It is the means by which a criminal defendant who lost his right to direct appeal of his criminal conviction due to counsel’s negligence, ignorance, or misinterpretation of the law may gain that appellate review.” Richards v. State, 275 Ga. 190, 191 (563 SE2d 856) (2002). Because Stephens has already had a direct appeal from his conviction and sentence, he was not entitled to an out-of-time appeal. The trial court’s denial of his motion for such unauthorized relief presents nothing for this Court to review.1 This appeal is therefore DISMISSED for lack of jurisdiction.

1 In any event, his appeal from the denial of his motion for an out-of-time appeal is untimely. See OCGA § 5-6-35 (d); Hill v. State, 204 Ga. App. 582 (420 SE2d 393) (1992). Court of Appeals of the State of Georgia 01/09/2013 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.