Paul Alan Roberts v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ February 14, 2019

The Court of Appeals hereby passes the following order: A19A1301. PAUL ALAN ROBERTS v. THE STATE.

Paul Alan Roberts was convicted of burglary, and we affirmed the conviction on appeal. Roberts v. State, 309 Ga. App. 681 (710 SE2d 878) (2011). He later filed a “Motion to Allow Filing of Out-of-Time Appeal” and an “Extraordinary Motion for New Trial to Sentence Only.” The trial court denied the motions, and Roberts appeals. “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 Roberts 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) (“[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, 320 (540 SE2d 612) (2001) (a defendant “is not entitled to another bite at the apple by way of a second appeal”). Thus, we are without jurisdiction to consider Roberts’s appeal from the denial of his “Motion to Allow Filing of Out-of-Time Appeal.” With regard to Roberts’s “Extraordinary Motion for New Trial to Sentence Only,” we note that “substance, rather than nomenclature, governs pleadings.” Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 590 (690 SE2d 397) (2010) (punctuation omitted). In the motion, Roberts argued that his trial counsel failed to inform him of the possible sentences he faced as a recidivist, and that if he had been properly informed, he would have pleaded guilty to a lesser included offense. In substance, Roberts is not seeking a new sentencing hearing, but is instead challenging the validity of his burglary conviction. However, “a petition to vacate or modify a

judgment of conviction is not an appropriate remedy in a criminal case.” Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786) (2009); see also Wright v. State, 277 Ga. 810, 811 (596 SE2d 587) (2004). Any appeal from an order denying or dismissing such a motion must be dismissed. See Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150) (2010); Harper, 286 Ga. at 218 (2). For these reasons, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 02/14/2019 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.