What did the court decide?

The Court of Appeals dismissed Cotton's application for discretionary review because he did not first seek the required post-Cook relief in the trial court, so the appellate court lacked jurisdiction to grant the out-of-time appeal.

Who is affected by this decision?

Dwayne Cotton is directly affected; other defendants in similar situations are affected only insofar as the court confirms that motions for out-of-time appeals must be filed in the trial court before seeking appellate relief.

Why didn't the Court of Appeals decide the merits?

Because Cotton did not follow the statutory and procedural route — he failed to move in the trial court first — the appellate court concluded it lacked jurisdiction to reach the merits.

Can this dismissal be appealed?

This order dismissed the application for discretionary review; the proper next step is to file the motion in superior court under OCGA § 5-6-39.1, and any adverse decision there could be appealed through the normal appellate process.

Dwayne Cotton v. State

Docket A26D0475

Court of record · Indexed in NoticeRegistry archive · AI-enriched for research

Criminal AppealDismissed

Filed: May 1, 2026 · 5 days ago
Jurisdiction: Georgia
Court: Court of Appeals of Georgia
Type: Opinion
Case type: Criminal Appeal
Disposition: Dismissed
Docket: A26D0475

Application for discretionary review of this Court's prior April 14, 2022 order and request for permission to pursue an out-of-time appeal following denial/dismissal of a trial-court motion

Summary

The Court of Appeals dismissed Dwayne Cotton’s application for discretionary review seeking permission to pursue an out-of-time appeal. Cotton previously pleaded guilty and litigated a motion for an out-of-time appeal; this Court had earlier held the trial court should have dismissed (not denied) Cotton’s motion under Cook v. State, and the trial court later dismissed the motion. Cotton now sought relief in this Court under OCGA § 5-6-39.1, but the Court held the statute and Cook do not permit direct review here because he did not first move in the trial court for leave to file an out-of-time appeal. The application was therefore dismissed, with the court noting Cotton may file a motion in superior court by June 30, 2026.

Issues Decided

Whether this Court has jurisdiction to grant permission for an out-of-time appeal under OCGA § 5-6-39.1 when the defendant did not first move in the trial court
Whether OCGA § 5-6-39.1 applies to a defendant who did not seek post-Cook relief in the trial court

Court's Reasoning

The court explained that under Georgia precedent an out-of-time appeal must be sought in the trial court and cannot be obtained directly from an appellate court; Cotton did not file the required post-Cook motion in the trial court. Although the legislature later enacted OCGA § 5-6-39.1 to provide a limited window for relief, subsection (b) itself requires a motion in the trial court. Because Cotton failed to move in the trial court, the Court of Appeals lacked jurisdiction to grant the relief and dismissed his application, while noting he may file a superior-court motion by June 30, 2026.

Authorities Cited

Cook v. State313 Ga. 471 (2022)
OCGA § 5-6-39.1
Carr v. State281 Ga. 43 (2006)
Court of Appeals Rule 37(b)

Parties

Appellant: Dwayne Cotton
Appellee: The State
Judge: Court of Appeals of the State of Georgia

Key Dates

Court of Appeals order (prior): 2022-04-14
Trial court dismissal of underlying motion: 2023-09-06
Filing of application for discretionary appeal: 2026-04-13
Court of Appeals dismissal order: 2026-05-01
Deadline to file motion in superior court under OCGA § 5-6-39.1: 2026-06-30

What You Should Do Next

1
File motion in superior court under OCGA § 5-6-39.1
Prepare and file a motion for leave to file an out-of-time motion for new trial or notice of appeal in the superior court before June 30, 2026, asserting eligibility under the statute and Cook's progeny.
2
Consult criminal defense counsel
Seek an attorney experienced in post-conviction and out-of-time appeal motions to evaluate eligibility under OCGA § 5-6-39.1 and to draft the superior-court motion and supporting evidence.
3
Preserve appellate remedies
If the superior court denies the motion, be prepared to timely appeal that denial through the appellate process rather than returning directly to the Court of Appeals for initial relief.

Frequently Asked Questions

What did the court decide?: The Court of Appeals dismissed Cotton's application for discretionary review because he did not first seek the required post-Cook relief in the trial court, so the appellate court lacked jurisdiction to grant the out-of-time appeal.
Who is affected by this decision?: Dwayne Cotton is directly affected; other defendants in similar situations are affected only insofar as the court confirms that motions for out-of-time appeals must be filed in the trial court before seeking appellate relief.
What can Cotton do next?: He may file a motion in the superior court seeking leave to file an out-of-time motion for new trial or notice of appeal under OCGA § 5-6-39.1, and he has until June 30, 2026 to do so.
Why didn't the Court of Appeals decide the merits?: Because Cotton did not follow the statutory and procedural route — he failed to move in the trial court first — the appellate court concluded it lacked jurisdiction to reach the merits.
Can this dismissal be appealed?: This order dismissed the application for discretionary review; the proper next step is to file the motion in superior court under OCGA § 5-6-39.1, and any adverse decision there could be appealed through the normal appellate process.

The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.

Full Filing Text

Court of Appeals
of the State of Georgia

ATLANTA,____________________
May 01, 2026

The Court of Appeals hereby passes the following order:

A26D0475. DWAYNE COTTON v. THE STATE.

After entering a guilty plea, Dwayne Cotton filed a motion for an out-of-time
appeal. The trial court denied the motion and Cotton appealed. We held that the trial
court should have dismissed the motion for an out-of-time appeal rather than denying
it pursuant to Cook v. State, 313 Ga. 471, 506(5) (870 SE2d 758) (2022). Case No.
A22A1105 (April 14, 2022). On September 6, 2023, the trial court dismissed the
underlying motion for an out of time appeal pursuant to this Court’s decision and
Cook. On April 13, 2026, Cotton filed an application for discretionary appeal of this
Court’s April 14, 2022 order. However, any challenge in this Court to its April 14,
2022 order would have had to have been brought through a motion for reconsideration
and is untimely. See Court of Appeals Rule 37(b).
Construing Cotton’s pro-se pleading liberally, it appears that he is asking this
Court to grant him permission to pursue an out-of-time appeal pursuant to OCGA §
5-6-39.1. See Siska v. McNeil, 346 Ga. App. 429, 433(2) (816 SE2d 423) (2018) (“this
Court liberally construes pro se filings”). This Court does not have jurisdiction to
grant this request.
In Cook, the Supreme Court of Georgia determined that a trial court lacks
authority to grant an out-of-time appeal, and that any remedy involving an out-of-time
appeal must be sought through habeas corpus. 313 Ga. at 506(5). In response, the
legislature enacted OCGA § 5-6-39.1, which became effective on May 14, 2025, and
allows for relief for defendants seeking an out-of-time motion for new trial or notice
of appeal who can make certain showings. The statute, in relevant part, provides:
In a criminal case, after a judgment of conviction, a defendant whose
motion seeking an out-of-time motion for new trial or notice of appeal or
whose granted out-of-time motion for new trial or notice of appeal was
dismissed based upon the Supreme Court’s decision in Cook v. State, 313
Ga. 471 (2022), and its progeny, shall have the right to move for leave to
file an out-of-time motion for new trial or notice of appeal until June 30,
2026 pursuant to subsection (a) of this Code section. Any filing made
pursuant to this subsection shall not be subject to the 100-day time
limitation in subsection (a) of this Code section.

OCGA § 5-6-39.1(b).
OCGA § 5-6-39.1(b) does not apply to this application for discretionary review
because Cotton did not move post-Cook in the trial court for leave to file an out-of-
time appeal. See Carr v. State, 281 Ga. 43, 44(1) (635 SE2d 767) (2006) (an
out-of-time appeal may not be sought directly from an appellate court; instead, a
motion seeking an out-of-time appeal must be filed in the trial court, and the denial of
any such motion may be appealed).
Thus, Cotton’s application is DISMISSED. Cotton shall have the right to file
a motion for an out-of-time appeal until June 30, 2026 in the superior court, pursuant
to OCGA § 5-6-39.1(a), and any such motion shall not be subject to the 100-day time
limitation in OCGA § 5-6-39.1(a). See OCGA § 5-6-39.1(b).

Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
05/01/2026
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.

, Clerk.