X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

McFadden, Presiding Judge. This case calls upon us to administer our Supreme Court’s recent decision in Cook v. State, 313 Ga. 471 (870 SE2d 758) (2022). Cook overturned the case law that had authorized trial courts to grant motions for outoftime appeal in cases where criminal defendants had been deprived of their right to appeal because of ineffective assistance of counsel. Here the trial court denied such a motion on the merits, and Zahir Ali appeals. Under Cook, we must vacate the trial court’s order and remand with direction to dismiss the motion. In most cases where, as here, we are without jurisdiction to reach the merits, we dispose of the case in an unpublished order. We are issuing a published opinion in this case in order to reiterate that out-of-time appeals are no longer an available remedy. In January 2019, Ali pleaded guilty to aggravated stalking and criminal attempt to commit a felony. In July 2019, he filed a pro se “out of time withdrawal of guilty plea.” The trial court denied the motion in August 2019, finding that it lacked jurisdiction to hear the out-of-time motion. Then, in November 2020, Ali filed a motion for leave to file an out-of-time appeal. In January 2022, the trial court entered an order that rescinded the previous order and denied Ali’s motions to withdraw his guilty plea and to file an out-of-time appeal on the merits. Ali thereafter filed this appeal. To be timely, a motion to withdraw a guilty plea must be filed in the term of court in which the defendant was sentenced. See Schoicket v. State, 312 Ga. 825, 827 (1) (865 SE2d 170) (2021). Here, Ali’s July 2019 motion to withdraw his guilty plea was untimely. See OCGA § 15-6-3 (18) (setting forth the terms of court for Henry County). After the trial court entered its January 2022 order denying on the merits Ali’s motion for out-of-time appeal, our Supreme Court, overturning cases that had authorized trial courts to grant such motions, held that trial courts are “without jurisdiction to decide [a] motion for outoftime appeal” on the merits because “there was and is no legal authority for motions for outoftime appeal in trial courts[.]” Cook, 313 Ga. at 506 (5). This holding applies to “all cases that are currently on direct review or otherwise not yet final[,]” id., and trial court orders that have decided such motions must be vacated if direct review of the case remains pending. Id. at 505 (4). So a defendant who seeks to withdraw a guilty plea after expiration of the term of court in which the sentence was imposed “must pursue such relief through habeas corpus proceedings.” Harvey v. State, __ Ga. __ (2) (882 SE2d 238, 241) (2022) (citation and punctuation omitted). Because the trial court’s consideration of the merits of Ali’s motions has become unauthorized, its order is hereby vacated. This case is hereby remanded to the trial court, which is directed to enter an order dismissing the motions. Judgment vacated and case remanded. Brown and Markle, JJ., concur.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
June 20, 2024
Atlanta, GA

The Daily Report is honoring those attorneys and judges who have made a remarkable difference in the legal profession.


Learn More
May 23, 2024
London

Celebrate outstanding achievement in law firms, chambers, in-house legal departments and alternative business structures.


Learn More
June 27, 2024
New York

Consulting Magazine identifies consultants that have the biggest impact on their clients, firms and the profession.


Learn More

Associate attorney position at NJ Immigration Law firm: Leschak & Associates, LLC, based in Freehold, NJ, is looking for a full time ass...


Apply Now ›

Company Description CourtLaw Injury Lawyers is an established Personal Injury Law Firm with its primary office located in Perth Amboy, New J...


Apply Now ›

Black Owl Recruiting is looking for a number of qualified applicants to fill positions for a highly reputable client. Recent experience work...


Apply Now ›
04/29/2024
The National Law Journal

Professional Announcement


View Announcement ›
04/15/2024
Connecticut Law Tribune

MELICK & PORTER, LLP PROMOTES CONNECTICUT PARTNERS HOLLY ROGERS, STEVEN BANKS, and ALEXANDER AHRENS


View Announcement ›
04/11/2024
New Jersey Law Journal

Professional Announcement


View Announcement ›