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Gable v. State

The trial court had no authority to grant the defendant an out-of-time discretionary application from the denial of his extraordinary motion for new trial.

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We granted certiorari in this case to consider whether a trial court has the authority to grant an out-of-time discretionary appeal in a criminal case as a remedy for counsel’s failure to timely file a discretionary application. We conclude that Georgia courts do not have such authority where, as here, that remedy is not required by a violation of the appellant’s constitutional rights. 1. In 1995, a jury found Appellant Homer Gable guilty of rape, aggravated sodomy, aggravated child molestation, and six counts of child molestation. The Court of Appeals affirmed on direct appeal. See Gable v. State , 222 Ga. App. 768 476 SE2d 66 1996. Appellant was represented by counsel at trial and on appeal. In October 2008, Appellant filed a pro se extraordinary motion for new trial under OCGA § 5-5-41 based on the alleged recantation of one of the victims. In November 2008, the trial court appointed a public defender to represent him. The court denied the extraordinary motion for new trial on July 30, 2009. Appellant’s counsel filed a notice of appeal.

The Court of Appeals dismissed Appellant’s direct appeal due to failure to follow the discretionary appeal procedure required by OCGA § 5-6-35. That statute says that appeals in certain types of cases, including “appeals, when separate from an original appeal, from the denial of an extraordinary motion for new trial” § 5-6-35 a 7, must be taken by filing an application for discretionary appeal with the appropriate appellate court “within 30 days of the entry of the order, decision, or judgment complained of,” § 5-6-35 d.

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