dismissing appeal from denial of motion for out-of- time appeal because defendant “has already had a direct appeal, and raises no arguments now that he could not have raised then”
How later courts described this case
- dismissing appeal from denial of motion for out-of- time appeal because defendant “has already had a direct appeal, and raises no arguments now that he could not have raised then”
- “[s]ince an out-of-time appeal is not available to one whose conviction has been affirmed on direct appeal, the denial of a motion for out-of-time appeal . . . is not subject to direct appeal” and any such appeal must be dismissed
Written by the judges who cited it.
The opinion
Barnes, Judge.
Darrell E. Brown was convicted of two counts of aggravated assault, three counts of aggravated battery, kidnapping with bodily injury, and possession of a knife during the commission of a felony. Brown’s conviction was affirmed on appeal by this Court.
Brown v. State,
275 Ga. App. 99 ( 619 SE2d 789 ) (2005). Since that time, Brown, pro se, has filed numerous motions including, on September 2, 2008, an amended motion for an out-of-time appeal, the denial of which he now appeals. In the order denying the motion, the trial court noted that it had denied and dismissed Brown’s previous motions for new appeal and for an out-of-time appeal which he filed August 12, 2008.
1
It further noted that Brown’s conviction had been affirmed on direct appeal.
“An out-of-time appeal is appropriate where, as the result of ineffective assistance of counsel, a timely direct appeal was not taken. It is the remedy for a frustrated right of appeal.” (Citations and punctuation omitted.)
Smith v. State,
266 Ga. 687 ( 470 SE2d 436 ) (1996). “[A] defendant is not entitled to a second direct appeal from his judgment of conviction.”
Richards v. State,
275 Ga. 190, 191 ( 563 SE2d 856 ) (2002). A defendant who has had a conviction affirmed on direct appeal may obtain further review of the judgment of conviction only “by filing an extraordinary motion for new trial or a petition for writ of habeas corpus.” Id. at 191, n. 1 .
As this Court has previously held in relation to Brown’s attempts at further review of his conviction, “[h]e is not entitled to another bite at the apple by way of a second appeal.”
Jackson v. State,
273 Ga. 320 ( 540 SE2d 612 ) (2001). He has already had a direct appeal, and raises no arguments now that he could not have raised then.
Since an out-of-time appeal is not available to one whose conviction has been affirmed on direct appeal, the denial of a motion for out-of-time appeal filed by [Brown] is not subject to direct appeal to the appellate courts. Accordingly, [Brown’s] direct appeal from the denial of his motion for out-of-time appeal is dismissed.
Richards v. State,
supra, 275 Ga. at 191-192 .
Appeal dismissed.
Miller, C. J., and Andrews, R J., concur.
*225
Decided February 19, 2009.
Darrell Brown,
pro se.
Daniel J. Porter, District Attorney, William C. Akins, Assistant District Attorney,
for appellee.
1
Brown filed an application for discretionary review of that ruling, which this Court dismissed in October 2008.