Zekemian Tyrone Davis v. State

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ June 09, 2021

The Court of Appeals hereby passes the following order:

A21A1469. ZEKEMIAN TYRONE DAVIS v. THE STATE.

A jury found Zekemian Tyrone Davis guilty of two counts of child molestation, and we affirmed his convictions on appeal.1 See Davis v. State, 327 Ga. App. 729 (761 SE2d 139) (2014). Davis subsequently filed two motions seeking an out-of-time appeal. The trial court denied the motions, and Davis filed this appeal.

“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). Where, as here, a defendant has already 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.”) (punctuation omitted). Accordingly, this appeal is hereby DISMISSED.

1 Davis subsequently challenged his sentence as void, and, in an unpublished opinion, we vacated the sentence and remanded the case for re-sentencing. See Davis v. State, Case No. A17A0378, decided May 3, 2017. Following re-sentencing, Davis appealed his new sentence, but his appeal was dismissed for failing to file a brief. See Davis v. State, Case No. A18A1164, dismissed April 12, 2018.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 06/09/2021

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.