Rodolfo Vega Barrientos v. State

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ April 18, 2019

The Court of Appeals hereby passes the following order:

A19D0395. RODOLFO VEGA BARRIENTOS v. THE STATE.

Rodolfo Vega Barrientos pleaded guilty in September 2009 to armed robbery, two counts of aggravated assault, hijacking a motor vehicle, possession of a weapon during the commission of crime, and giving a false name. In January 2019, Barrientos filed a motion for out-of-time appeal. The trial court denied the motion, and Barrientos filed this timely application for discretionary appeal. Because Barrientos’s application included a copy of the trial court’s order dated February 18, 2019, but not a stamped “filed” copy, we directed Barrientos on March 25, 2019 to supplement his application with a stamp “filed” copy of the order within ten days.

However, the denial of a motion for an out-of-time appeal is directly appealable. Lunsford v. State, 237 Ga. App. 696, 696 (515 SE2d 198) (1999); see also Wetherington v. State, 296 Ga. 451 (769 SE2d 53) (2015) (addressing merits of direct appeal from denial of motion for out-of-time appeal following guilty plea). Accordingly, this application for discretionary appeal is hereby GRANTED pursuant to OCGA § 5-6-35 (j). Barrientos shall have ten days from the date of this order to file his notice of appeal in the trial court. OCGA § 5-6-35 (g). The clerk of the trial court is DIRECTED to include a copy of this order in the record transmitted to the Court of Appeals.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 04/18/2019

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.