Background
In January 2025, Luis Morales was convicted of two counts of statutory rape. On January 21, 2026 — nearly a year after his conviction — Morales filed a pro se motion for leave to file an out-of-time notice of appeal. The trial court dismissed the motion, and Morales appealed.
The case implicates a significant shift in Georgia criminal appellate practice. In Cook v. State, 313 Ga. 471 (2022), the Supreme Court of Georgia held that trial courts lack authority to grant out-of-time appeals, and that criminal defendants seeking out-of-time relief must instead pursue habeas corpus. The General Assembly responded by enacting OCGA section 5-6-39.1, effective May 14, 2025, which restored a statutory path for out-of-time appeals — but with strict time limits.
The Court’s Holding
The Court of Appeals dismissed the appeal for lack of jurisdiction, finding that OCGA section 5-6-39.1 did not apply to Morales.
Under the new statute, a defendant may seek out-of-time relief in two situations: (1) the defendant files a motion for leave to file an out-of-time motion for new trial or notice of appeal within 100 days of the expiration of the original filing deadline, or (2) the defendant previously had an out-of-time motion or appeal dismissed under Cook. Morales satisfied neither condition. He filed his motion well beyond the 100-day window, and he had not previously had a motion dismissed under Cook. Because Morales was not entitled to pursue out-of-time relief under the statute, the Court of Appeals held that the propriety of the trial court’s ruling was moot and dismissed the appeal.
Key Takeaways
- OCGA section 5-6-39.1, enacted in response to Cook v. State, restores a statutory path for out-of-time criminal appeals but imposes a strict 100-day deadline from the expiration of the original filing period.
- Defendants who miss both the original appeal deadline and the 100-day out-of-time window, and who did not have a prior motion dismissed under Cook, have no statutory right to out-of-time relief. Their only remaining option is habeas corpus.
- The Court of Appeals treats the absence of statutory eligibility for out-of-time relief as rendering the trial court’s ruling moot, resulting in dismissal rather than affirmance on the merits.
Why It Matters
This decision is one of the first applications of OCGA section 5-6-39.1, the legislature’s response to the Supreme Court’s 2022 Cook decision that eliminated the longstanding practice of trial court-granted out-of-time appeals. For Georgia criminal defense practitioners, the case underscores that the new statute’s 100-day window is jurisdictional: miss it, and the statutory path to an out-of-time appeal is closed. Defense attorneys must calendar both the original appeal deadline and the 100-day out-of-time deadline upon conviction. For defendants convicted before the statute took effect who did not have a motion dismissed under Cook, the window may already be closed — leaving habeas corpus as the only avenue to challenge a conviction on appeal.