Ivan Cruz v. State

• Court: Court of Appeals of Georgia
• Decided: August 26, 2021
• Docket: A21A1607
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ August 12, 2021

The Court of Appeals hereby passes the following order:

A21A1607. IVAN CRUZ v. THE STATE.

In 2016, Ivan Cruz pled guilty to three counts of aggravated child molestation, aggravated sexual battery, five counts of child molestation, sexual exploitation of a child, and two counts of solicitation of sodomy from a child under 18. Cruz subsequently filed a motion to vacate void sentence, which the trial court denied. In Cruz’s appeal from that ruling, this Court vacated in part the order and remanded the case for resentencing. Cruz v. State, 346 Ga. App. 802 (815 SE2d 311) (2018). The trial court issued an amended order resentencing Cruz in May 2019. Cruz subsequently filed a motion to withdraw guilty plea, and this Court affirmed the trial court’s denial of that motion in an unpublished opinion. Cruz v. State, Case No. A20A0273 (June 15, 2020). Cruz then filed a motion for out-of-time appeal. The trial court denied the motion, and Cruz filed the instant appeal. We lack jurisdiction. An out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal. Romano v. State, 297 Ga. 497, 497 (775 SE2d 151) (2015). The denial of a motion for an out-of-time appeal is directly appealable when the criminal conviction at issue has not undergone appellate review. Id. However, there is no right to directly appeal the denial of such a motion filed by a defendant whose conviction has been affirmed on direct appeal. Richards v. State, 275 Ga. 190, 191 (563 SE2d 856) (2002). Thus, in Romano, 297 Ga. at 497-498, the Supreme Court dismissed the defendant’s appeal of the denial of his motion for an out-of-time appeal on the basis that his conviction had been reviewed and affirmed on the direct appeal of the denial of his motion to withdraw his guilty plea. Here, Cruz’s conviction was reviewed and affirmed on the direct appeal of the denial of his motion to withdraw his guilty plea. Therefore, he is not entitled to an out-of-time appeal, and this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 08/12/2021 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.