Montel Deon Brown v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ March 24, 2017

The Court of Appeals hereby passes the following order: A17A1230. MONTEL DEON BROWN v. THE STATE.

In 2012, Montel Deon Brown pled guilty to aggravated assault and possession of a firearm or knife during the commission of a felony. He subsequently filed a motion to withdraw his plea, and this Court affirmed the trial court’s denial of that motion in an unpublished opinion. Brown v. State, Case Number A13A0662 (May 14, 2013). Brown thereafter filed a motion for out-of-time appeal. The trial court denied the motion, and Brown filed the instant appeal. We lack jurisdiction. An out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal. Romano v. State, 297 Ga. 497, 497 (775 SE2d 151) (2015). The denial of a motion for an out-of-time appeal is directly appealable when the criminal conviction at issue has not undergone appellate review. Id. However, there is no right to directly appeal the denial of such a motion filed by a defendant whose conviction has been affirmed on direct appeal. Richards v. State, 275 Ga. 190, 191 (563 SE2d 856) (2002). Thus, in Romano, supra, the Supreme Court dismissed the defendant’s appeal of the denial of his motion for an out-of-time appeal on the basis that his conviction had been reviewed and affirmed on the direct appeal of the denial of his motion to withdraw his guilty plea. 297 Ga. at 497-498. Here, Brown’s conviction was reviewed and affirmed on the direct appeal of the denial of his motion

to withdraw his guilty plea. Therefore, he is not entitled to an out-of-time appeal. This appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 03/24/2017 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.