Robb Baker v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ February 26, 2021

The Court of Appeals hereby passes the following order: A21D0207. ROBB BAKER v. THE STATE.

After a jury trial, Robb Wayne Baker was convicted of battery-family violence and sentenced to 12 months with 60 days to serve. Several months later, Baker filed a motion for out-of-time appeal, which the trial court denied. He then filed this timely application for discretionary appeal. The trial court’s order, however, appears to be directly appealable. The denial of a motion for 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). Further, no provision of OCGA § 5-6-35 (a), the discretionary-appeal statute, appears to apply to this case. We will grant a timely filed application for discretionary appeal if the lower court’s order is subject to direct appeal. See OCGA § 5-6-35 (j). Accordingly, this application is hereby GRANTED, and Baker shall have ten days from the date of this order to file a notice of appeal in the trial court. If he has already filed a timely notice of appeal in the trial court, he need not file a second notice. The clerk of the trial court is directed to include a copy of this order in the appeal record transmitted to this Court.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 02/26/2021 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.