Theolphis Daniels v. State

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ October 05, 2020

The Court of Appeals hereby passes the following order:

A21A0239. THEOLPHIS DANIELS v. THE STATE.

In 2015, a jury found Theolphis Daniels guilty of rape, statutory rape, aggravated child molestation, and false imprisonment, and we affirmed his judgment of conviction on appeal. See Daniels v. State, No. A17A1330 (Oct. 16, 2017). In January 2020, Daniels filed a motion for an out-of-time appeal, which the trial court denied. Daniels then filed this direct appeal. We lack jurisdiction.

“An out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal.” Kilgore v. State, 325 Ga. App. 874, 875 (1) (756 SE2d 9) (2014) (punctuation omitted). Because Daniels already has had a direct appeal, he is not entitled to an out-of-time appeal. See Richards v. State, 275 Ga. 190, 191 (563 SE2d 856) (2002) (“[T]here is no right to directly appeal the denial of a motion for out-of-time appeal filed by a criminal defendant whose conviction has been affirmed on direct appeal.”); Jackson v. State, 273 Ga. 320, 320 (540 SE2d 612) (2001) (a defendant “is not entitled to another bite at the apple by way of a second appeal”). Accordingly, this appeal is hereby DISMISSED. See Richards, 275 Ga. at 191-192.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 10/05/2020

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.