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Wetherington v. State

The trial court lacked the authority to rule on the defendant's motion for an out-of-time appeal from his convictions based on his guilty plea to malice murder, attempted armed robbery and attempted kidnapping, since the defendant's motion challenged the same judgment of conviction that was challenged in his pending January 2009 appeal.

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Michael Wetherington appeals the trial court’s denial of his motion for an out-of-time appeal from his convictions based on a guilty plea in Lowndes County. On July 27, 1986, Wetherington pled guilty to malice murder, attempted armed robbery, and attempted kidnapping; he was sentenced to serve life in prison for the murder and consecutive ten-year sentences for the two other convictions.

Wetherington did not file a timely direct appeal. However, over the ensuing two decades, acting pro se, he has filed an unsuccessful habeas corpus petition, two unsuccessful motions to vacate his sentence, and five motions for an out-of-time direct appeal. He filed his first motion for an out-of-time appeal in December 2008. After that motion was denied by the trial court, Wetherington filed a timely notice of appeal on January 20, 2009. For reasons not explained in the record, however, the Lowndes County Clerk’s office did not transmit the notice of appeal and the record to this Court as directed, even after Wetherington wrote to the clerk’s office in November 2009 to advise that this Court had not received the record and again requested that the clerk forward it. There is also no indication in the record that the appeal was ever withdrawn or dismissed.

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