Summary
The Supreme Court of Georgia vacated the trial court’s order denying Saul Polanco’s motion for an out-of-time appeal and remanded for dismissal of that motion under Cook v. State. The court advised that any subsequent appeal would likely be untimely and identified habeas corpus as a possible avenue for constitutional claims. In a concurrence, Justice Ellington concluded that Polanco’s felony-murder sentence was void because Georgia law did not authorize a split sentence with probation or parole eligibility after only 25 years, and explained that Polanco could seek to withdraw his guilty plea after vacatur of the sentence.
Topics
Practice areas
Questions Presented
- Whether the trial court had jurisdiction to decide Polanco's motion for an out-of-time appeal on the merits after Cook v. State eliminated the judicially created out-of-time-appeal procedure.
- What disposition was required for the trial court's order denying the motion while direct review remained pending.
Holdings
- A Georgia trial court lacks jurisdiction to decide a motion for an out-of-time appeal on the merits because Georgia law provides no legal authority for that procedure.
- The trial court's order denying Polanco's motion for an out-of-time appeal must be vacated, and the case must be remanded for entry of an order dismissing the motion.
Key quotations
“there was and is no legal authority for motions for out-of-time appeal in trial courts.”
“pending and future motions for out-of-time appeals in trial courts should be dismissed, and trial court orders that have decided such motions on the merits . . . should be vacated if direct review of the case remains pending or if the case is otherwise not final.”
Factual background
In November 2019, Saul Polanco pleaded guilty to felony murder, aggravated assault, possession of a knife during the commission of a felony, and misdemeanor third-degree cruelty to children. The amended final disposition was entered on December 17, 2019, with the malice-murder count nolle prossed. Polanco did not timely file a notice of appeal and later sought an out-of-time appeal, which the trial court denied.
Procedural history
Polanco pleaded guilty in November 2019, and the amended final disposition was entered on December 17, 2019. He did not timely appeal and later filed a motion for an out-of-time appeal. The trial court denied the motion, re-entered the order after vacatur for lack of service on counsel, and Polanco filed a notice of appeal. Applying Cook v. State, the Supreme Court vacated the trial court's merits order and remanded for dismissal of the motion.
Remand instructions
Vacate the trial court's order denying the motion for an out-of-time appeal and remand for entry of an order dismissing that motion.