Kyle Hudson Coleman v. State ( 2022 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
May 23, 2022
The Court of Appeals hereby passes the following order:
A22A0943. COLEMAN v. THE STATE.
Kyle Hudson Coleman filed this appeal pursuant to a trial court order denying
his motion for an out-of-time appeal. In Cook v. State, ___ Ga. ___ (___ SE2d ___)
(Case No. S21A1270, decided March 15, 2022), our Supreme Court recently held that
“there was and is no legal authority for motions for out-of-time appeal in trial courts
and that the out-of-time appeal procedure . . . is not a legally cognizable vehicle for
a convicted defendant to seek relief from alleged constitutional violations. [This]
holding applies . . . to all cases that are currently on direct review or otherwise not yet
final.” Id. at ___ (5) (slip op. at 82). So Coleman “had no right to file a motion for an
out-of-time appeal in the trial court; his remedy, if any, lies in habeas corpus.”
Rutledge v. State, ___ Ga. ___ (___ SE2d ___) (Case No. S21A1036, decided March
15, 2022) (slip op. at 4).
Accordingly, the trial court was without jurisdiction to decide
[Coleman’s] motion for [an] out-of-time appeal . . . and because the trial
court’s order plainly shows that it denied the motion on the merits, the
trial court’s order must be[, and hereby is,] vacated and the case [is]
remanded to the trial court with direction that the motion be dismissed.
Cook, supra (citation and punctuation omitted). Accord Rutledge, supra (“we vacate
the trial court’s order [denying a motion for an out-of-time appeal] and remand for
entry of the appropriate dismissal order”).
If Coleman 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.
He 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,____________________
05/23/2022
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.