Michael Malone v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ November 05, 2025

The Court of Appeals hereby passes the following order:

A26A0702. MICHAEL MALONE v. THE STATE. Defendant Michael Malone pled guilty to rape and other offenses in 2009. In April 2025, after the trial court denied his extraordinary motion to withdraw his guilty plea, Malone filed a notice of appeal to this Court. We dismissed that appeal for Malone’s failure to file a brief. See Malone v. State, Case No. A25A1747 (June 30, 2025). In July and September 2025, Malone filed motions seeking an out-of-time appeal, arguing that he was entitled to a hearing based on the newly enacted OCGA § 5-6-39.1. The trial court dismissed Malone’s motions, concluding that it did not have the authority under OCGA § 5-6-39.1 (b) to grant relief. Malone then filed the instant appeal. We, however, lack jurisdiction. Where a defendant has already had a direct appeal, he is not entitled to an out-of-time appeal. See Richards v. State, 275 Ga. 190, 191 (563 SE2d 856) (2002). The dismissal of Malone’s previous appeal constitutes the binding law of the case, even though this Court did not reach the merits of the claims in that appeal. Ross v. State, 310 Ga. App. 326, 327 (713 SE2d 438) (2011). And a party “is not entitled to another bite at the apple by way of a second appeal.” Jackson v. State, 273 Ga. 320, 320 (540 SE2d 612) (2001).

Accordingly, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 11/05/2025 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.