John Mostiller v. State

• Court: Court of Appeals of Georgia
• Decided: April 20, 2022
• Docket: A22A0806
• Status: Published

Opinion

THIRD DIVISION DOYLE, P. J., REESE, J., and SENIOR APPELLATE JUDGE PHIPPS

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

April 20, 2022

In the Court of Appeals of Georgia A22A0806. MOSTILLER v. THE STATE.

PHIPPS, Senior Appellate Judge.

A jury found John Mostiller guilty of involuntary manslaughter and aggravated

battery, and the trial court sentenced him for those offenses. Mostiller filed an

untimely motion for a new trial, which the trial court denied on the merits, and

Mostiller appealed from that order. This Court dismissed the appeal for lack of

jurisdiction because Mostiller’s untimely motion for a new trial did not extend the

time for filing a notice of appeal. Mostiller v. State, Case No. A21A1772 (Aug. 4,

2021). After our remittitur was filed, Mostiller filed a pro se motion for an out-of-

time appeal. His counsel subsequently also filed a motion for an out-of-time appeal.

The trial court granted the counseled motion, and Mostiller filed this appeal. For the

reasons explained below, we vacate the trial court’s order granting Mostiller’s motion for an out-of-time appeal and remand the case with direction that the trial court

dismiss the motion.

Until recently, Georgia courts recognized an out-of-time appeal as the

judicially-created remedy for “a criminal defendant [who] demonstrates that his

appeal of right has been frustrated by a violation of constitutional magnitude[.]”

Collier v. State, 307 Ga. 363, 371 (2) (834 SE2d 769) (2019). However, in a recent

decision, the Supreme Court of Georgia concluded that a trial court lacks authority

to decide a motion for an out-of-time appeal. Cook v. State, ___ Ga. ___, ___ (5) (slip

op. at 82) (___ SE2d ___) (Case No. S21A1270, decided March 15, 2022). The Court

explained that the out-of-time appeal procedure “is not a legally cognizable vehicle

for a convicted defendant to seek relief from alleged constitutional violations” and

that its holding “applies to . . . all cases that are currently on direct review or

otherwise not yet final.” Id. at ___ (5) (slip op. at 82).

In light of Cook, Mostiller had no right to file a motion for an out-of-time

appeal in the trial court, and the trial court’s order granting him permission to pursue

an out-of-time appeal was unauthorized. See Cook, ___ Ga. at ___ (5) (slip op. at 82);

see also Rutledge v. State, ___ Ga. ___, (slip op. at 3-4) (Case No. S21A1036,

decided March 15, 2022). The trial court should have dismissed, rather than granted,

2 Mostiller’s motion. See Cook, ___ Ga. at ___ (5) (slip op. at 82). Accordingly, the

trial court’s order granting the motion for an out-of-time appeal is hereby VACATED,

and this case is hereby REMANDED to the trial court, which is DIRECTED to enter

an order dismissing the motion for an out-of-time appeal.1 Id; see also Meheux v.

State, 309 Ga. 857, 859 (848 SE2d 844) (2020) (when a trial court addresses the

merits of a motion it lacks jurisdiction to decide, we must vacate the trial court’s

order and remand the case with instructions to dismiss the motion).

Judgment vacated and case remanded with direction. Doyle, P. J., and Reese,

J., concur.

1 We remind Mostiller that no appeal will be available from that dismissal order. See Meheux v. State, 309 Ga. 857, 859, n. 5 (848 SE2d 844) (2020). His remedy, if any, lies in habeas corpus. See Cook, ___ Ga. at ___ (5) (slip op. at 83); see also Rutledge, ___ Ga. at ___ (slip op. at 4).