David Mercer Stubbs v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ February 17, 2017

The Court of Appeals hereby passes the following order: A17A1076. DAVID MERCER STUBBS v. THE STATE.

In 1991, David Mercer Stubbs was found guilty of simple assault and kidnapping with bodily injury. On appeal, this Court reversed Stubbs’s assault conviction, but affirmed his kidnapping conviction. See Stubbs v. State, 220 Ga. App. 106 (469 SE2d 229) (1996). In August 2016, Stubbs filed a motion for an out- of-time appeal as to both his assault conviction and his kidnapping conviction. The trial court denied the motion, and Stubbs filed the instant appeal. We lack jurisdiction. An out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal. Romano v. State, 297 Ga. 497, 497 (775 SE2d 151) (2015). The denial of a motion for an out-of-time appeal is directly appealable when the criminal conviction at issue has not undergone appellate review. Id. However, there is no right to directly appeal the denial of such a motion filed by a defendant whose conviction has been affirmed on direct appeal. Richards v. State, 275 Ga. 190, 191 (563 SE2d 856) (2002). Here, Stubbs’s kidnapping conviction was reviewed and affirmed on direct appeal, while his assault conviction was reversed on direct appeal. Therefore, he is

not entitled to an out-of-time appeal as to either conviction, and this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 02/17/2017 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.