Ricky Thompson v. State

SECOND DIVISION
                               DOYLE, P. J.,
                  DAVIS, J., and SENIOR JUDGE FULLER

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                              https://www.gaappeals.us/rules



                                                                     April 16, 2026




In the Court of Appeals of Georgia
 A26A0125. THOMPSON v. THE STATE.

      FULLER, Senior Judge.

      Following a jury trial, Ricky Thompson was found guilty of involuntary

manslaughter and aggravated assault. On appeal, Thompson challenges the denial of

his motion for new trial, as amended, pursuant to an order granting him an out-of-time

appeal. For the reasons explained below, we vacate the trial court’s order granting an

out-of-time appeal and remand this case with direction.

      In Cook v. State, 313 Ga. 471, 506(5) (870 SE2d 758) (2022), the Supreme Court

of Georgia eliminated the judicially-created out-of-time appeal procedure in trial

courts and held that any remedy involving an out-of-time appeal must be sought in

habeas corpus. In response, the legislature enacted OCGA § 5-6-39.1, which became
effective on May 14, 2025. See Ga. L. 2025 at 621–23, §§ 1-3, 4-1, 4-2. Under the plain

language of the statute, a trial court has jurisdiction to consider a motion for leave to

file an out-of-time notice of appeal only if it is filed “within 100 days from the

expiration of the time period for the filing of such . . . notice.” OCGA § 5-6-39.1(a)(1),

(2). The only exception to this 100-day window is in subsection (b), which extends the

deadline to file such motions in criminal cases “until June 30, 2026” if the defendant

previously filed a motion for an out-of-time appeal that “was dismissed based upon

the Supreme Court’s decision in Cook.” OCGA § 5-6-39.1(b).

      Here, Thompson’s final judgment of conviction was entered in January 2023,

and the trial court subsequently denied his timely motion for new trial, as amended,

on February 13, 2025. No appeal was taken from that order, and the deadline to timely

do so expired on Monday, March 17, 2025. See OCGA §§ 5-6-38(a) (providing that

a notice of appeal must generally be filed within 30 days of entry of the order sought

to be appealed); 1-3-1(d)(3) (extending the filing deadline to the next business day

where, as here, it falls on a Saturday). On July 9, 2025, Thompson filed a motion

seeking an out-of-time appeal pursuant to OCGA § 5-6-39.1. The trial court granted

the motion, and Thompson filed a notice of appeal on July 18, 2025.


                                            2
       Thompson was not entitled to an out-of-time appeal under OCGA § 5-6-39.1.

Because he filed the motion for leave to file an out-of-time appeal 114 days after the

time to appeal expired, it was untimely under the 100-day limitation in OCGA § 5-6-

39.1(a). While Thompson asserted below that subsection (b) should apply because his

motion would have been dismissed pursuant to Cook had he filed it before the new

statute became effective, he did not do so and thus never had a motion “dismissed

based upon” Cook. See OCGA § 5-6-39.1(b). Consequently, Thompson’s motion for

an out-of-time appeal remained subject to the 100-day time limitation. Because his

motion was filed outside of the 100-day limit, the trial court lacked statutory authority

to grant it. See id.

       Accordingly, we vacate the trial court’s order granting Thompson’s motion for

an out-of-time appeal and remand for entry of an order dismissing the motion. See

Cook, 313 Ga. at 506(5). Thompson’s remedy, if any, lies in habeas corpus. See id.

       Judgment vacated and case remanded with direction. Doyle, P. J., and Davis, J.,

concur.




                                            3