Charles Franklin v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ September 16, 2020

The Court of Appeals hereby passes the following order: A21A0242. CHARLES FRANKLIN v. THE STATE.

In 2011, a jury convicted Charles Franklin of rape, aggravated sodomy, aggravated assault, aggravated battery, false imprisonment, and the false report of a crime. We affirmed Franklin’s convictions on direct appeal. See Franklin v. State, 335 Ga. App. 557 (782 SE2d 461) (2016). In June 2020, Franklin filed a pro se motion for an out-of-time appeal. The trial court dismissed the motion, and Franklin then filed this pro se direct appeal. We, however, lack jurisdiction. “An out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal.” Richards v. State, 275 Ga. 190, 191 (563 SE2d 856) (2002) (punctuation omitted); see also Kilgore v. State, 325 Ga. App. 874, 875 (1) (756 SE2d 9) (2014). “Due to the very nature of an out-of-time appeal, it is not a remedy available to a criminal defendant whose conviction has been reviewed by an appellate court on direct appeal since that defendant is not entitled to a second direct appeal from his judgment of conviction.” Richards, 275 Ga. at 191. Because Franklin has had a direct appeal in which we affirmed his convictions, he is not entitled to an out-of-time appeal, and the dismissal of his motion for an out-of-time appeal is not subject to appeal. See id.; accord Brown v. State, 296 Ga. App. 224, 224 (674 SE2d 91) (2009). Accordingly, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 09/16/2020 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.