Gino Butler v. State

Court of Appeals of the State of Georgia ATLANTA,____________________ January 13, 2016 The Court of Appeals hereby passes the following order: A16A0714. GINO BUTLER v. THE STATE. In 1989, a jury found Gino Butler guilty of aggravated assault and false imprisonment. We affirmed his convictions on direct appeal. Butler v. State, 194 Ga. App. 895 ( 392 SE2d 324 ) (1990). In July 2015, Butler filed a motion for an out-oftime appeal, which the trial court denied the following month. Butler then filed this direct appeal. We lack jurisdiction. “An out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal.” Kilgore v. State, 325 Ga. App. 874, 875 (1) ( 756 SE2d 9 ) (2014) (punctuation omitted). Because Butler already has 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) (“[T]here is no right to directly appeal the denial of a motion for out-of-time appeal filed by a criminal defendant whose conviction has been affirmed on direct appeal.”); Jackson v. State, 273 Ga. 320 ( 540 SE2d 612 ) (2001) (a defendant “is not entitled to another bite at the apple by way of a second appeal”). Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction. Court of Appeals of the State of Georgia 01/13/2016 Clerk’s Office, Atlanta,____________________ 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.