Court of Appeals
of the State of Georgia
ATLANTA,____________________
April 12, 2022
The Court of Appeals hereby passes the following order:
A22A0698. ROBERT ERIC OWENBY v. THE STATE.
On June 14, 2021, the trial court granted Appellant Robert Eric Owenby’s
motion for an out-of-time appeal; on that same day, he filed a notice of appeal seeking
review of an order entered on January 12, 2021 denying his motion for new trial.
However, after the appeal was docketed in this Court, the Supreme Court of Georgia
issued Cook v. State, ___ Ga. ___ (___ SE2d ___) (2022 Ga. LEXIS 64, 2022 WL
779746) (Case No. S21A1270, decided March 15, 2022), holding that a trial court is
“without jurisdiction to decide [a] motion for out-of-time appeal” on the merits
because “there was and is no legal authority for motions for out-of time appeal in trial
courts.” Id. at (5) (slip op. at 82). Cook also concluded that this holding is to be
applied to “all cases that are currently on direct review or otherwise not yet final[,]”
id., and directed that “pending and future motions for out-of-time appeals in trial
courts should be dismissed, and trial court orders that have decided such motions on
the merits . . . should be vacated if direct review of the case remains pending or if the
case is otherwise not final.” Id. at ___ (4) (slip op. at 80-81).
Accordingly, the trial court’s June 14, 2021 order granting Appellant’s motion
for out-of-time appeal is vacated, and this case is remanded for the entry of an
appropriate dismissal order. Appellant is advised that any subsequent attempt to
appeal the trial court’s January 12, 2021 order denying his motion for new trial will
likely be dismissed as untimely. See OCGA § 5-6-38 (a). Furthermore, the trial
court’s entry of an order on remand dismissing Appellant’s motion for an out-of-time
appeal will be unlikely to present any cognizable basis for an appeal. See Henderson
v. State, 303 Ga. 241, 244 (811 SE2d 388) (2018); Brooks v. State, 301 Ga. 748, 752
(804 SE2d 1) (2017). If Appellant believes that he was unconstitutionally deprived
of his right to appeal, he may be able to pursue relief for that claim through a petition
for a writ of habeas corpus, along with any other claims alleging deprivation of his
constitutional rights in the proceedings that resulted in his conviction. See OCGA §
9-14-41 et seq.; see also Rutledge v. State, ___ Ga. ___ (slip op. at 4) (Case No.
S21A1036, decided March 15, 2022). Appellant should be aware of the possible
application of the restrictions that apply to such habeas corpus filings, such as the
time deadlines provided by OCGA § 9-14-42 (c) and the limitation on successive
petitions provided by OCGA § 9-14-51.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
04/12/2022
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.