Martin Rodriguez v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 13, 2017

The Court of Appeals hereby passes the following order: A17A0830. MARTIN RODRIGUEZ v. THE STATE.

Martin Rodriguez was convicted of delivery of methamphetamine, and we affirmed his conviction on appeal. Rodriguez v. State, A12A0340 (decided May 11, 2012). Rodriguez subsequently filed a motion for out-of-time appeal to assert ineffective assistance claims. The trial court denied the motion, and Rodriguez 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.” Milliken v. State, 259 Ga. App. 144, 145 (575 SE2d 910) (2003). “[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.” Richards v. State, 275 Ga. 190, 191 (563 SE2d 856) (2002). “Habeas corpus is the exclusive post-appeal procedure available to a criminal defendant who asserts the denial of a constitutional right such as effective assistance of counsel.” Johnson v. State, 272 Ga. App. 294, 296 (5) (612 SE2d 29) (2005) (punctuation omitted). Because Rodriguez already has had a direct appeal, he is not entitled to an

out-of-time appeal. Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 01/13/2017 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.