Background
In August 2006, Julius Burkett, Jr. pleaded guilty in Glascock County Superior Court to malice murder, aggravated assault, aggravated battery, burglary, and aggravated stalking, receiving a life sentence plus consecutive terms. The plea was non-negotiated and entered after the State withdrew its notice of intent to seek the death penalty. In March 2022, Burkett moved for leave to file an out-of-time notice of appeal, but that motion was dismissed following the Georgia Supreme Court’s decision in Cook v. State, 313 Ga. 471 (2022), which abolished the judicially created practice of granting such leave.
In May 2025, the Georgia General Assembly enacted OCGA § 5-6-39.1, establishing a new statutory procedure for defendants to seek leave to file out-of-time notices of appeal or motions for new trial. The statute expressly revived the rights of defendants whose prior motions had been dismissed under Cook, giving them until June 30, 2026 to refile. Burkett did so on August 28, 2025. The trial court nonetheless dismissed his motion again, citing Cook, and Burkett appealed.
The Court of Appeals transferred the appeal to the Georgia Supreme Court. The District Attorney argued as a threshold matter that the court lacked jurisdiction because appeals from guilty pleas must proceed by discretionary application under OCGA § 5-6-35(a)(5.3). The Supreme Court rejected that argument, holding that Burkett was not pursuing a direct appeal from his guilty plea but rather an appeal from the dismissal of his motion for leave — an order that is directly appealable.
The Court’s Holding
The Georgia Supreme Court vacated the trial court’s dismissal and remanded for reconsideration under OCGA § 5-6-39.1. The Court held that the trial court erred by dismissing Burkett’s motion under Cook because the new statute expressly grants defendants whose Cook-based dismissals were defendants the right to refile, and Burkett did so within the statutory window. On remand, the trial court must evaluate the motion using the criteria set out in OCGA § 5-6-39.1(a)–(b), not summarily dismiss it under the now-superseded Cook framework.
The Court declined to reach the State’s argument that Burkett waived his appellate rights as part of his 2006 guilty plea. Though the State urged affirmance on that ground, the Court concluded that the waiver question is one for the trial court to address in the first instance when applying the new statutory criteria on remand.
The Court also flagged a significant jurisdictional warning for the parties: the same 2025 legislation that created OCGA § 5-6-39.1 also amended OCGA § 5-6-35 to require discretionary applications for direct appeals from guilty pleas. Because OCGA § 5-6-39.1 authorizes only out-of-time notices of appeal — not out-of-time discretionary applications — a defendant who has missed the 30-day deadline for a discretionary application under OCGA § 5-6-35 may have permanently lost the ability to appeal a guilty plea, regardless of relief available under the new statute.
Key Takeaways
- Trial courts may not dismiss out-of-time appeal motions under Cook v. State when the defendant qualifies under OCGA § 5-6-39.1(b)’s revival provision and has filed within the June 30, 2026 deadline.
- An appeal from the dismissal of a motion for leave to file an out-of-time appeal is a directly appealable order — it is not a “direct appeal from a guilty plea” requiring a discretionary application under OCGA § 5-6-35(a)(5.3).
- Guilty-plea waiver of appellate rights is a merits argument for the trial court to resolve under the OCGA § 5-6-39.1 criteria on remand, not a basis for an appellate court to affirm a dismissal that was entered on different grounds.
- Defendants seeking to challenge guilty pleas face a critical jurisdictional trap: OCGA § 5-6-39.1 does not provide for out-of-time discretionary applications, so missing the 30-day deadline for a discretionary application under OCGA § 5-6-35 may be fatal to any appeal of a guilty plea.
Why It Matters
This decision clarifies how Georgia courts must apply the General Assembly’s 2025 legislative response to Cook v. State, confirming that defendants whose Cook-based dismissals were revived by OCGA § 5-6-39.1 are entitled to have their motions evaluated on the merits under the new statutory criteria. It forecloses the shortcut of simply re-dismissing those motions under the old Cook rule.
The Court’s jurisdictional warning is equally important for practitioners. Because the 2025 legislation simultaneously created the out-of-time appeal procedure and imposed a new discretionary-application requirement for guilty-plea appeals — without providing any mechanism for out-of-time discretionary applications — defense attorneys representing clients who pleaded guilty must act quickly to assess whether the 30-day discretionary deadline has already passed. Failure to do so may permanently extinguish a client’s appellate rights regardless of what OCGA § 5-6-39.1 otherwise permits.