Timothy A. Henry v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 25, 2016

The Court of Appeals hereby passes the following order: A16A1736. TIMOTHY A. HENRY v. THE STATE.

In February 2010, Timothy A. Henry was convicted by a jury of two counts of aggravated child molestation, two counts of aggravated sodomy, and one count of child molestation. After the trial court granted Henry’s motion for out-of-time appeal, his convictions were affirmed by this Court. See Henry v. State, 316 Ga. App. 132 (729 SE2d 429) (2012). In September 2015, Henry filed another motion for out-of- time appeal, which the trial court denied. Henry then filed this direct appeal. “An out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal. . . . [I]t 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.” Milliken v. State, 259 Ga. App. 144, 145 (575 SE2d 910) (2003) (punctuation and footnote omitted). Because Henry 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.”). Accordingly, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia 05/25/2016 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.