Daniel Hargrove v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ November 16, 2020

The Court of Appeals hereby passes the following order: A21A0601. DANIEL HARGROVE v. THE STATE.

In 2007, Daniel Hargrove was convicted of kidnapping with bodily injury, family violence aggravated battery, and family violence aggravated assault (two counts). This Court reversed his conviction for kidnapping but affirmed his remaining convictions in 2009. Hargrove v. State, 299 Ga. App. 27 (681 SE2d 707) (2009). In 2012 and 2018, this Court dismissed for lack of jurisdiction Hargrove’s appeals from the trial court’s denial of his motions to vacate a void sentence. Case No. A12A2244 (decided August 8, 2012) and Case No. A18A1223 (decided March 9, 2018). On January 13, 2020 Hargrove filed a motion for out-of-time appeal. Following a hearing, the trial court dismissed the motion, and Hargrove filed this direct appeal. We, however, lack jurisdiction. “An out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal.” Richards v. State, 275 Ga. 190, 191 (563 SE2d 856) (2002) (punctuation omitted); see also Kilgore v. State, 325 Ga. App. 874, 875 (1) (756 SE2d 9) (2014). “Due to the very nature of an out-of-time appeal, it 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.” Richards, 275 Ga. at 191. Because Hargrove has had a direct appeal, he is not entitled to an out-of-time appeal, and the denial of his motion for an out-of-time appeal is not subject to appeal. See id.; accord

Brown v. State, 296 Ga. App. 224, 224 (674 SE2d 91) (2009). Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 11/16/2020 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.