Background
A jury convicted Tyrell Maleek Corley in 2021 of aggravated assault and other offenses. Corley appealed the denial of his motion for a new trial, but the Court of Appeals dismissed that appeal after his counsel failed to file a brief. The dismissal order advised Corley to seek an out-of-time appeal in the trial court if he wished to pursue an appeal.
In July 2026, Corley filed a pro se motion for an out-of-time appeal, and the trial court granted it the next month. With counsel, Corley then filed a direct appeal. The State moved to dismiss, arguing that the trial court lacked authority to grant the requested relief.
The Court’s Holding
The Court of Appeals agreed with the State. Under OCGA § 5-6-39.1, a defendant seeking leave for an out-of-time appeal must generally move within 100 days after the ordinary filing period expires, unless the defendant previously had an out-of-time motion or appeal dismissed under Cook v. State. Corley’s request came years after the applicable deadline, and his earlier direct appeal—not an out-of-time appeal—had been dismissed.
The trial court therefore lacked jurisdiction to grant Corley’s motion. The Court of Appeals vacated the August 2026 order granting out-of-time relief and remanded with instructions to dismiss the motion for lack of jurisdiction. Without a valid order authorizing an out-of-time appeal, Corley’s August 2026 notice of appeal was untimely from the 2021 new-trial ruling, so the appellate court granted the State’s motion and dismissed the appeal.
Key Takeaways
- The time limits in OCGA § 5-6-39.1 for seeking out-of-time appellate relief are jurisdictional.
- A prior dismissal of a direct appeal does not satisfy the statute’s exception for a prior out-of-time motion or appeal dismissed under Cook.
- When a trial court grants untimely out-of-time relief without jurisdiction, the proper remedy is to vacate that order and dismiss the resulting appeal.
Why It Matters
The order reinforces that Georgia’s statutory route to out-of-time appellate relief is tightly time-limited. Defendants whose appeals were lost through counsel error may need to pursue other available remedies, including habeas corpus where appropriate, if they cannot meet the statutory requirements.
It also confirms that an improperly granted out-of-time appeal cannot create appellate jurisdiction where the underlying notice of appeal remains untimely.