Jeremy Brown v. State

• Court: Court of Appeals of Georgia
• Decided: February 28, 2023
• Docket: A23A0952
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ February 28, 2023

The Court of Appeals hereby passes the following order:

A23A0952. JEREMY BROWN v. THE STATE.

In December 2019, Jeremy Brown entered a negotiated Alford1 plea to two counts of statutory rape and one count of enticing a child for indecent purposes. In June 2021, he filed a pro se motion for out-of-time appeal. In November 2021, the trial court denied the motion, and Brown thereafter filed a notice of appeal. The trial court dismissed the appeal and dismissed the request to proceed in forma pauperis as moot, and Brown filed this appeal. In Cook v. State, 313 Ga. 471 (870 SE2d 758) (2022), issued well after the trial court’s November 2021 order, the Supreme Court of Georgia eliminated the judicially created out-of-time appeal procedure and held that “there was and is no legal authority for motions for out-of-time appeal in trial courts.” Id. at 506 (5). This holding applies to “all cases that are currently on direct review or otherwise not yet final[,]” id., and trial court orders that have decided such motions must be vacated if direct review of the case remains pending. Id. at 505 (4). Because the trial court was without the authority to consider Brown’s motion for an out-of-time appeal on the merits, any error with regard to the trial court’s subsequent dismissal of Brown’s appeal is moot. See Carlock v. Kmart Corp., 227 Ga. App. 356, 361 (3) (a) (489 SE2d 99) (1997) (A moot issue is one where a ruling is sought on a matter that has no practical effect on the alleged controversy).

1 North Carolina v. Alford, 400 U. S. 25 (91 SCt 160, 27 LE2d 162) (1970). Accordingly, the trial court’s November 2021 order is hereby VACATED, and this appeal is hereby REMANDED to the trial court, which is DIRECTED to enter an order dismissing Brown’s motion for an out-of-time appeal.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 02/28/2023 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.