Telley Clarke v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ June 03, 2025

The Court of Appeals hereby passes the following order: A25A1769. TELLEY CLARKE v. THE STATE.

A jury found Telley Clarke guilty of aggravated assault and other related offenses, and the trial court entered his sentence in December 2019. In April 2022, Clarke filed a motion for leave to file an out-of-time motion for a new trial, arguing that he should be excused from complying with the OCGA § 5-5-40 (a) 30-day deadline for filing a motion for a new trial because this is an “extraordinary case” within the meaning of the statute. Before the trial court ruled on that motion, Clarke filed an out-of-time motion for a new trial challenging his convictions in May 2022. In July 2023, the trial court granted Clarke’s motion for leave to file an out-of-time motion for a new trial, construing it as a request to file an extraordinary motion for a new trial pursuant to OCGA §§ 5-5-40 (a) and 5-5-41 (a). Clarke subsequently amended his out-of-time motion for a new trial twice. The trial court denied the motion in September 2024, and Clarke filed the current direct appeal. We lack jurisdiction. We construe Clarke’s out-of-time motion for a new trial, like the trial court did, as an extraordinary motion for a new trial because it was filed more than 30 days after the trial court entered his sentence.1 See OCGA §§ 5-5-40 (a); 5-5-41 (a). An appeal

1 We do not construe Clarke’s motion for leave to file an out-of-time motion for a new trial as motion for an out-of-time appeal because the Supreme Court of Georgia held in Cook v. State, 313 Ga. 471, 506 (5) (870 SE2d 758) (2022), that: (i) “there was and is no legal authority for motions for out-of-time appeal in trial courts,” (ii) “the out-of-time appeal procedure [previously recognized in Georgia] is not a legally

from an order denying an extraordinary motion for a new trial must be initiated by filing an application for discretionary review. OCGA § 5-6-35 (a) (7), (b); Balkcom v. State, 227 Ga. App. 327, 329 (489 SE2d 129) (1997). “Compliance with the discretionary appeals procedure is jurisdictional.” Smoak v. Dept. of Human Resources, 221 Ga. App. 257, 257 (471 SE2d 60) (1996). Clarke’s failure to follow the discretionary review procedure deprives us of jurisdiction over this direct appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 06/03/2025 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.

cognizable vehicle for a convicted defendant to seek relief for alleged constitutional violations,” and (iii) the remedy, if any, for a criminal defendant who has failed to timely appeal his conviction lies in habeas corpus. Accord Rutledge v. State, 313 Ga. 460, 461 (870 SE2d 720) (2022).