Osborn v. State

729 S.E.2d 21, 315 Ga. App. 842, 2012 Fulton County D. Rep. 1666, 2012 WL 1631369, 2012 Ga. App. LEXIS 450

• Court: Court of Appeals of Georgia
• Decided: May 10, 2012
• Docket: A12A0380
• Status: Published

Opinion

MlKELL, Presiding Judge.

Charles Wayne Osborn, convicted on October 28, 2009, of aggravated battery, cruelty to children, and hindering an emergency phone call, appeals from the trial court’s denial of his motion for out-of-time appeal.

Osborn filed a notice of appeal from his conviction on October 29, 2010. That appeal was dismissed by order of this court on January 7, 2011, which order also advised Osborn that he could file a motion for out-of-time appeal with the trial court. Osborn did so on August 29, 2011, and that motion was denied by the trial court on September 20, 2011, without a hearing.

As acknowledged by appellee, this matter must be remanded to the trial court for a hearing on the issue of whether the failure to file a timely appeal was the result of a constitutional violation concerning the appeal.¹

Judgment reversed and case remanded with direction.

Miller and Blackwell, JJ., concur.

1 Gable v. State, 290 Ga. 81, 85-86 (720 SE2d 170) (2011), citing Rowland v. State, 264 Ga. 872, 875-876 (2) (452 SE2d 756) (1995) (“Should, upon the defendant’s application for out-of-time appeal, it be established to the trial court’s satisfaction that the appellate procedural deficiency was due to appellate counsel’s failure to perform routine duties, appellant is entitled to an out-of-time appeal.”) (footnote omitted).