Mostiller v. State

872 S.E.2d 455

MOSTILLER

v.The STATE.

A22A0806

Court of Appeals of Georgia.

April 20, 2022

Lee William Fitzpatrick, Kennesaw, for Appellant.

Leigh Ellen Patterson, Rome, Leah Cristina Mayo, for Appellee.

Phipps, Senior Appellate Judge.

A jury found John Mostiller guilty of involuntary manslaughter and aggravated battery, and the trial court sentenced him for those offenses. Mostiller filed an untimely motion for a new trial, which the trial court denied on the merits, and Mostiller appealed from that order. This Court dismissed the appeal for lack of jurisdiction because Mostiller's untimely motion for a new trial did not extend the time for filing a notice of appeal. Mostiller v. State , Case No. A21A1772 (Aug. 4, 2021). After our remittitur was filed, Mostiller filed a pro se motion for an out-of-time appeal. His counsel subsequently also filed a motion for an out-of-time appeal. The trial court granted the counseled motion, and Mostiller filed this appeal. For the reasons explained below, we vacate the trial court's order granting Mostiller's motion for an out-of-time appeal and remand the case with direction that the trial court dismiss the motion.

Until recently, Georgia courts recognized an out-of-time appeal as the judicially-created remedy for "a criminal defendant [who] demonstrates that his appeal of right has been frustrated by a violation of constitutional magnitude[.]" Collier v. State, 307 Ga. 363, 371 (2), (834 S.E.2d 769) (2019). However, in a recent decision, the Supreme Court of Georgia concluded that a trial court lacks authority to decide a motion for an out-of-time appeal. Cook v. State , 313 Ga. 471, –––– (5) (slip op. at 82), (870 S.E.2d 758) (Case No. S21A1270, decided March 15, 2022). The Court explained that the out-of-time appeal procedure "is not a legally cognizable vehicle for a convicted defendant to seek relief from alleged constitutional violations" and that its holding "applies to ... all cases that are currently on direct review or otherwise not yet final." Id. at ––––, (870 S.E.2d 758) (5) (slip op. at 82).

In light of Cook , Mostiller had no right to file a motion for an out-of-time appeal in the trial court, and the trial court's order granting him permission to pursue an out-of-time appeal was unauthorized. See Cook , 313 Ga. at –––– (5) (slip op. at 82) (870 S.E.2d 758) ; see also Rutledge v. State , 313 Ga. 460, –––– – –––– (slip op. at 3-4) (870 S.E.2d 720) (Case No. S21A1036, decided March 15, 2022). The trial court should have dismissed, rather than granted, Mostiller's motion. See Cook , 313 Ga. at –––– (5) (slip op. at 82) (870 S.E.2d 758). Accordingly, the trial court's order granting the motion for an out-of-time appeal is hereby VACATED, and this case is hereby REMANDED to the trial court, which is DIRECTED to enter an order dismissing the motion for an out-of-time appeal.¹ Id. ; see also Meheux v. State , 309 Ga. 857, 859, (848 S.E.2d 844) (2020) (when a trial court addresses the merits of a motion it lacks jurisdiction to decide, we must vacate the trial court's order and remand the case with instructions to dismiss the motion).

Judgment vacated and case remanded with direction.

Doyle, P. J., and Reese, J., concur.

1 We remind Mostiller that no appeal will be available from that dismissal order. See Meheux v. State , 309 Ga. 857, 859, n. 5, (848 S.E.2d 844) (2020). His remedy, if any, lies in habeas corpus. See Cook , 313 Ga. at –––– (5) (slip op. at 83) (870 S.E.2d 758) ; see also Rutledge , 313 Ga. at –––– (slip op. at 4) (870 S.E.2d 720).