Court of Appeals
of the State of Georgia
ATLANTA,____________________
April 13, 2022
The Court of Appeals hereby passes the following order:
A22A0575. ALLEN v. THE STATE.
On June 26, 2018, Timothy Allen pled guilty to family-violence battery as to
an incident that took place in December 2017. After the hearing, the trial court
entered an order finding that Allen had entered the plea voluntarily, knowingly, and
intelligently. Almost three years later, on March 26, 2021, Allen filed a pro se motion
for an out-of-time appeal asserting that the trial court had failed to advise him of his
right to appeal from the entry of his plea. On May 12, 2021, Allen amended his pro
se motion, alleging inter alia that plea counsel had a duty to advise him of his right
to an appeal, that counsel had performed deficiently by failing to advise him of that
right, and that Allen had the right to a hearing on the matter. On October 13, 2021,
the trial court cancelled a scheduled hearing and entered a written order denying the
motion for an out-of-time appeal on the ground that Allen had waived his right to an
appeal. Allen filed a timely notice of appeal from this order.
Allen cites Collier v. State, 307 Ga. 363 (834 SE2d 769) (2019), as support for
his contention that a trial court errs when it fails to hold a hearing and to make factual
findings concerning a motion for out-of-time appeal alleging ineffective assistance
in providing advice about or acting upon a right of direct appeal. See id. at 364-365
(1). In the recent decision of Cook v. State, ___ Ga. ___ (Case No. S21A1270,
decided March 15, 2022), however, our Supreme Court eliminated the out-of-time
appeal procedure in trial courts, holding that there “is no legal authority for motions
for out-of-time appeal in trial courts.” Id. at ___ (5). And that holding applies “to all
cases that are currently on direct review or otherwise not yet final.” Id.; see also
Rutledge v. State, ___ Ga. ___, ___ (Case No. S21A1036, decided March 15, 2022)
(applying Cook’s holding to the summary denial of a motion for out-of-time appeal).
Here, Allen’s pro se motion for an out-of-time appeal alleged a violation of his
constitutional right to effective counsel, and such a claim is now not properly
addressed in such a motion. We therefore VACATE the trial court’s order denying
Allen’s motion for out-of-time appeal and REMAND the case with direction that the
trial court enter an order dismissing the case. Rutledge, ___ Ga. at ___ (vacating the
denial of a motion for out-of-time appeal and remanding for the entry of a dismissal
order).
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
04/13/2022
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.