Robert Campbell v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ October 09, 2020

The Court of Appeals hereby passes the following order: A21D0067. ROBERT CAMPBELL v. THE STATE.

After a jury trial, Robert Campbell was found guilty of hijacking a motor vehicle, aggravated assault, possession of a firearm during the commission of these crimes, four counts of armed robbery, possession of a firearm during the commission of one of the armed robberies, and criminal attempt to commit the offense of armed robbery. This Court affirmed his convictions on direct appeal. Campbell v. State, 314 Ga. App. 299 (724 SE2d 24) (2012). Campbell filed a pro se motion for out-of-time appeal and motion requesting judicial review, which the trial court denied. Campbell then filed this application for discretionary appeal to challenge the trial court’s order. However, we lack jurisdiction. The denial of a motion for an out-of-time appeal is directly appealable when the conviction at issue has not been the subject of a direct appeal. See English v. State, 307 Ga. App. 544, 545 n.4 (705 SE2d 667) (2010), overruled in part on other grounds by Collier v. State, 307 Ga. 363 (834 SE2d 769) (2019); Lunsford v. State, 237 Ga. App. 696, 696 (515 SE2d 198) (1999). Generally, if a party applies for discretionary review of a directly appealable order, this Court grants the application under OCGA § 5-6-35 (j). However, as noted above, Campbell’s convictions were affirmed on direct appeal. “An out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal.” (Citation omitted.) Kilgore v. State, 325 Ga. App. 874, 875 (1) (756 SE2d 9) (2014). Because Campbell 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, 320 (540 SE2d 612) (2001) (a defendant “is not entitled to another bite at the apple by way of a second appeal”). Accordingly, this application is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 10/09/2020 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.