Ismael Gomez v. State

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ June 25, 2026

The Court of Appeals hereby passes the following order:

A26A2119. ISMAEL GOMEZ v. THE STATE.

In 2023, Ismael Gomez pleaded guilty to trafficking in fentanyl. In 2025, Gomez filed a motion for an out-of-time appeal pursuant to OCGA § 5-6-39.1, which the trial dismissed. Gomez filed a notice of appeal from the dismissal of his motion. We, however, lack jurisdiction.

In Cook v. State, 313 Ga. 471, 506(5) (870 SE2d 758) (2022), the Supreme Court of Georgia determined that a trial court lacks authority to grant an out-of-time appeal, and that any remedy involving an out-of-time appeal must be sought in habeas corpus. In response, the legislature enacted OCGA § 5-6-39.1, which became effective on May 14, 2025. This statute allows for defendants to seek out-of-time relief if (1) the defendant moves for leave to file an out-of-time motion for new trial or notice of appeal within 100 days from the expiration of the time period for the filing of such motion or notice, or (2) the defendant had an out-of-time motion or appeal dismissed under Cook.

Here, OCGA § 5-6-39.1 does not apply to Gomez because he neither filed a motion for out-of-time appeal within 100 days from the expiration of the time period for filing a notice of appeal nor had a motion for out-of-time appeal dismissed under Cook. Accordingly, Gomez is not entitled to out-of-time relief, and this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 06/25/2026

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.