Thomas Larry Pyburn v. State

• Court: Court of Appeals of Georgia
• Decided: April 30, 2021
• Docket: A21A1081
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ April 22, 2021

The Court of Appeals hereby passes the following order:

A21A1081. THOMAS LARRY PYBURN v. THE STATE.

Thomas Pyburn was convicted of incest and sentenced to 20 years of imprisonment. We affirmed his conviction on direct appeal. Pyburn v. State, 301 Ga. App. 372 (687 SE2d 909) (2009). Pyburn has filed several appeals in this Court.1 Most recently, the trial court denied Pyburn’s motions for leave to file an out-of-time appeal and for an evidentiary hearing on his out-of-time 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 Pyburn already has had a direct appeal, he is not entitled to an out-of-time appeal or an appeal of the denial of his motion for leave to file an out-of-time appeal. See Richards v. State, 275 Ga. 190, 191 (563 SE2d 856)

1 We transferred to the Supreme Court Case No. A15A2341 (appeal from the trial court’s denial of his application for out-of-time review by the Sentence Review Panel) (decided August 26, 2015) and Case No. A15A2342 (appeal from the denial of his petition for mandamus) decided August 26, 2015). In a single order, the Supreme Court dismissed Pyburn’s appeal from the denial of mandamus relief and transferred Case No. A15A2341 back to this Court, which we dismissed on December 16, 2015. See Case Nos. S16A0187, S16A0188 (decided November 2, 2015). In 2016, we dismissed Pyburn’s appeal from the denial of his extraordinary motion for new trial. See Case No. A16A1661 (dismissed June 9, 2016). In Case No. A18A2021 (dismissed July 19, 2018), we dismissed Pyburn’s appeal from the denial of his mandamus petition seeking to challenge his incest conviction. Also in 2018, we dismissed Pyburn’s application for discretionary review of a trial court order denying his motion to set aside judgment. See Case No. A19D0064 (dismissed September 12, 2018). (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,____________________ 04/22/2021 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.