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Publication Date

11-17-2023

Abstract

On March 15, 2022, the Georgia Supreme Court decided Cook v. State. This case was a bombshell in Georgia’s postconviction law because it discarded decades of judicial precedent overnight. For years, Georgia’s criminal defendants relied on motions for out-of-time appeals when defense counsel failed to appeal before a deadline or to advise a defendant of his or her appellate rights. The out-of-time appeal procedure was a quick, easy, and fair way to return the defendant to the exact same place he was before the appeal deadline was missed.

The ramifications of Cook were severe. Overnight, every outof-time appeal case in Georgia was dismissed. There is a considerable chance that there are people in prison who should not be there merely because they relied on what Georgia courts had been telling them to do (for decades). Furthermore, Cook forced criminal defendants who missed an appeal deadline through no fault of their own to navigate Georgia’s habeas corpus procedure, which can be far more burdensome than an out-of-time appeal.

Recognizing these severe ramifications, the Georgia General Assembly crafted House Bill 126 which sought to directly address Cook v. State. The bill sought to codify out-of-time appeals into Georgia law, and it provided a grace period for those defendants’ whose cases were dismissed in the wake of Cook. The bill received overwhelming approval from Georgia’s general assembly. Yet, the bill experienced tweaks and the house was unable to vote on the substitute version before the legislative session came to end for 2023. Thus, the bill never became law.

This note details the development of out-of-time appeals, compares Georgia’s out-of-time appeals with other jurisdiction’s practices, and pleas for the general assembly to finish what it started with House Bill 126.

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