Background
A jury convicted Bobby Sullens of aggravated child molestation in 2007. After the trial court denied his motion for a new trial, Sullens appealed, and the Court of Appeals of Georgia affirmed his conviction in an unpublished 2010 opinion.
In June 2026, Sullens moved for leave to file an out-of-time notice of appeal. The trial court denied the motion, and Sullens appealed that ruling.
The Court’s Holding
The Court of Appeals dismissed the appeal for lack of jurisdiction. It held that Sullens did not qualify for relief under OCGA § 5-6-39.1 because he did not seek leave within 100 days after his appeal deadline expired and had not previously had an out-of-time motion or appeal dismissed under Cook v. State.
The court also held that Sullens was not entitled to another direct appeal because he had already directly appealed his conviction. Accordingly, the trial court’s denial could not provide a basis for the present appeal.
Key Takeaways
- OCGA § 5-6-39.1 permits out-of-time appellate relief only when its specified timing and eligibility requirements are satisfied.
- The statute’s special pathway for claims affected by Cook applies only when an earlier out-of-time motion or appeal was dismissed under Cook and the renewed request was timely filed.
- A defendant who has already received a direct appeal is not entitled to a second direct appeal of the same conviction.
Why It Matters
The order underscores that Georgia’s statutory restoration of out-of-time appeal procedures is limited, not a general authorization to reopen long-final criminal cases. Defendants must fit within the statute’s express deadlines and eligibility categories.
It also confirms that out-of-time procedures cannot be used to obtain a second direct review after an appellate court has already decided the defendant’s original appeal.