ATLANTA (LN) — The Georgia Supreme Court vacated a trial court’s dismissal of Julius Burkett Jr.’s motion for leave to file an out-of-time notice of appeal, ruling that a 2025 statute restored the right for defendants whose prior motions were dismissed because they were pending when the court decided Cook v. State.
Burkett, who pleaded guilty to malice murder and other crimes in 2006, filed his motion on August 28, 2025, citing the new law codified at OCGA § 5-6-39.1. The trial court had dismissed the motion because it was pending at the time the court issued its Cook decision, which ended the judicial practice of granting such leave.
The new statute, enacted in May 2025, explicitly gave defendants whose out-of-time motions were dismissed based on Cook the right to move for leave to file a new notice of appeal or motion for new trial until June 30, 2026.
The court agreed with the parties that dismissing Burkett’s motion under Cook was error. Because his motion was dismissed based on that precedent, he had a statutory right to move for leave under the new criteria, and the trial court should have considered his motion on its merits rather than dismissing it outright.
The District Attorney argued that the court lacked jurisdiction because direct appeals from guilty pleas must be taken by application for discretionary appeal under OCGA § 5-6-35(a)(5.3). The court rejected this, ruling that Burkett was appealing the dismissal of his motion for leave to file an out-of-time appeal, which is directly appealable.
The State also argued that Burkett waived his right to appeal when he pleaded guilty in 2006 in exchange for the withdrawal of the State’s notice of intent to seek the death penalty. The court held that this waiver argument is for the trial court to consider in the first instance when evaluating the motion under the new statute.
In a significant aside, the court noted a "looming jurisdictional defect" created by the same legislation that revived out-of-time appeals. The legislature amended OCGA § 5-6-35 to require applications for discretionary appeal for direct appeals from guilty pleas, with a strict 30-day filing deadline.
The new statute for out-of-time appeals, OCGA § 5-6-39.1, allows defendants to file out-of-time motions for new trials or notices of appeal but says nothing about out-of-time applications for discretionary appeal.
This means that if a defendant missed the 30-day deadline to file an application for discretionary appeal from a guilty plea, they have missed their opportunity to appeal that plea, even if they qualify for an out-of-time notice of appeal under the new law.
The judgment was vacated and the case remanded for the trial court to consider Burkett’s motion under the new statute. All justices concurred, except Presiding Justice Warren, who did not participate.