Willie Edwards appeals from the trial court’s denial of his motion for an out-of-time appeal from his conviction for two counts of child molestation. We find no abuse of discretion in the trial court’s denial of the motion, and conclude that, in the absence of a timely filed notice of appeal from the conviction, the appeal must be dismissed. A jury found Edwards guilty of two counts of child molestation in December 1999. Edwards did not file a timely appeal from his conviction, but subsequently filed a pro se motion for an out-of-time appeal in August 2001 alleging that he requested his appointed trial counsel to file an appeal but counsel failed to do so. There is nothing in the record showing the motion was served on or brought to the attention of the State. Without a hearing, the trial court granted the motion in October 2001 and ordered that new counsel be appointed to represent Edwards on appeal and that a motion for a new trial be filed. New appellate counsel filed a motion for new trial on behalf of Edwards in November 2001 and a hearing was held on the motion in March 2002. At the hearing on the motion for new trial, Edwards testified that he told his trial counsel to file an appeal after his conviction but trial counsel failed to do so. Edwards’s trial counsel was called as a witness and testified that, after Edwards was convicted, he had a discussion with Edwards about his appeal rights1 and that Edwards told him not to file an appeal. At the conclusion of the hearing, the State argued that the testimony from Edwards’s trial attorney showed that Edwards was not entitled to an out-of-time appeal and moved the trial court to reconsider its earlier grant of the motion for out-of-time appeal in light of this testimony. The trial court denied the motion to reconsider its earlier ruling granting an out-of-time appeal and subsequently denied Edwards’s motion for a new trial.
In March 2002, Edwards appealed to this Court in Case No. A02A2030 from the denial of his motion for a new trial and from his convictions. The State moved for this Court to dismiss the appeal on grounds that the record showed Edwards was not entitled to an out-of-time appeal, and, because he had failed to timely appeal from his convictions, there was no jurisdictional basis for the appeal. This Court entered an order on the State’s motion finding that the record showed conflicting testimony given by Edwards and his trial attorney bearing on whether Edwards had a right to an out-of-time appeal, and that the trial court had failed to consider or resolve the factual conflict. Accordingly, we denied the State’s motion to dismiss and remanded the case for the trial court to consider and resolve the factual conflict and redetermine whether Edwards was entitled to pursue an out-of-time appeal and other post-conviction remedies. On remand, the trial court inquired into the factual dispute between Edwards and his trial attorney and found that the version of events given by Edwards’s trial attorney —that Edwards told him not to file an appeal —was more credible. The trial court found that the failure to file a timely appeal was not due to an error by the trial attorney but was due to the fact that Edwards told his trial attorney not to file an appeal and that Edwards thereafter “slept on his rights.” Accordingly, the trial court vacated its earlier grant of an out-of-time appeal and ordered that Edwards’s motion for an out-of-time appeal be denied. The present appeal followed in which Edwards claims the trial court erred by denying his motion for an out-of-time appeal.
