Rouzan v. State

872 S.E.2d 288, 313 Ga. 606

• Court: Supreme Court of Georgia
• Decided: April 19, 2022
• Docket: S22A0199
• Status: Published

Opinion

313 Ga. 606 FINAL COPY

S22A0199. ROUZAN v. THE STATE.

ORDER OF THE COURT.

In 2013, Seth Rouzan was convicted of malice murder and use

of a firearm by a convicted felon during the commission of a felony.

In his first appeal from his convictions, this Court vacated the

judgment of conviction and remanded the case for the trial court to

apply the correct test in exercising its discretion to decide whether

other-acts evidence should have been admitted, directing that if the

court decided that the evidence was properly admitted, then the

court should re-enter the judgment so that Rouzan could file another

appeal challenging that ruling. See Rouzan v. State, 308 Ga. 894,

901 (843 SE2d 814) (2020). On remand, the trial court entered an

order purporting to deny Rouzan’s second amended motion for new

trial, but the court failed to re-enter the judgment of conviction.

Thus, this Court vacated the trial court’s order and remanded the

case for the court to comply with the direction to reconsider the other-acts issue and either grant Rouzan a new trial or re-enter the

judgment of conviction. See Case No. S21A0770 (Mar. 10, 2021). On

the second remand, the trial court entered an order on March 16,

2021, re-entering the judgment of conviction and denying the motion

for new trial. On June 18, 2021, Rouzan filed a motion for out-of-

time appeal based on his counsel’s failure to file a timely notice of

appeal. The trial court granted the motion on June 21, 2021, and

Rouzan filed a notice of appeal on July 12, 2021.

However, in Cook v. State, 313 Ga. ___ (___ SE2d ___) (2022),

this Court eliminated the judicially created out-of-time-appeal

procedure in trial courts, holding that a trial court is “without

jurisdiction to decide [a] motion for out-of-time appeal” on the merits

because “there was and is no legal authority for motions for out-of-

time appeal in trial courts.” Id. at ___ (5). Cook also concluded that

this holding is to be applied to “all cases that are currently on direct

review or otherwise not yet final[,]” id., and directed that “pending

and future motions for out-of-time appeals in trial courts should be

dismissed, and trial court orders that have decided such motions on

2 the merits . . . should be vacated if direct review of the case remains

pending or if the case is otherwise not final.” Id. at ___ (4).

Accordingly, the trial court’s June 21, 2021 order granting

Rouzan’s motion for out-of-time appeal is vacated, and this case is

remanded for the entry of an order dismissing Rouzan’s motion.

Rouzan is advised that any subsequent attempt to appeal the trial

court’s March 16, 2021 order re-entering the judgment of conviction

and denying his motion for new trial will likely be dismissed as

untimely. See OCGA § 5-6-38 (a). Furthermore, the trial court’s

entry of an order on remand dismissing Rouzan’s motion for out-of-

time appeal will be unlikely to present any cognizable basis for an

appeal. See Henderson v. State, 303 Ga. 241, 244 (811 SE2d 388)

(2018); Brooks v. State, 301 Ga. 748, 752 (804 SE2d 1) (2017). If

Rouzan believes that he was unconstitutionally deprived of his right

to appeal, he may be able to pursue relief for that claim through a

petition for a writ of habeas corpus, along with any other claims

alleging deprivation of his constitutional rights in the proceedings

that resulted in his conviction. See OCGA § 9-14-41 et seq. Rouzan

3 should be aware of the possible application of the restrictions that

apply to such habeas corpus filings, such as the time deadlines

provided by OCGA § 9-14-42 (c) and the limitation on successive

petitions provided by OCGA § 9-14-51.

All the Justices concur.

NAHMIAS, Chief Justice, concurring.

I agree that the trial court’s order granting Rouzan’s motion for

an out-of-time appeal must be vacated and the motion must then be

dismissed on remand pursuant to this Court’s recent decision in

Cook v. State, 313 Ga. ___ (___ SE2d ___). But I emphasize that our

ruling today does not preclude Rouzan from seeking relief for the

unconstitutional deprivation of his right to a direct appeal in a

petition for habeas corpus, where it appears that he should prevail

given his counsel’s forthright admission in the motion that Rouzan

lost his right to appeal because counsel inadvertently failed to file a

new notice of appeal after the trial court re-entered the judgment of

conviction. In navigating the procedural requirements of habeas

4 corpus, Rouzan would certainly benefit from representation by pro

bono counsel so that he can obtain his direct appeal and again raise

his strong claims that on remand from this Court’s initial decision

in this case, the trial court disregarded both the law of the case

doctrine and the law regarding admission of other-acts evidence

under OCGA § 24-4-404 (b) and that he is therefore entitled to a new

trial.

I am authorized to state that Presiding Justice Boggs and

Justices Warren, Bethel, and Colvin join in this concurrence.

Ordered April 19, 2022.

Murder. Richmond Superior Court. Before Judge Craig.

Robert L. Persse, for appellant.

Jared T. Williams, District Attorney, Joshua B. Smith,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Matthew B. Crowder,

Assistant Attorney General, for appellee.