Polanco v. State

Saul Polanco pleaded guilty in Gwinnett County to felony murder and other charges after fatally stabbing his wife. He missed the deadline to appeal, so he later asked the trial court to let him file an appeal out of time. The trial court denied that request, and Polanco tried to appeal that denial to the Supreme Court of Georgia. While this appeal was pending, the Supreme Court of Georgia decided a different case, Cook v. State, holding that trial courts never had legal authority to rule on these out-of-time appeal requests in the first place. Applying that new rule here, the court vacated the trial court's order and sent the case back so the trial court can simply dismiss Polanco's motion instead of ruling on its merits. A concurring opinion also flagged that Polanco's sentence itself appears illegal under Georgia law.

Following Cook v. State, the trial court had no jurisdiction to rule on the merits of Polanco's motion for an out-of-time appeal, so its order denying that motion is vacated and the case is remanded with instructions to dismiss the motion rather than decide it.

The ruling confirms that Georgians who missed their appeal deadline cannot get a trial court to rule on an out-of-time appeal motion; they must instead pursue habeas corpus. It also flags a broader sentencing problem: judges cannot mix parole eligibility and probation into life sentences for murder.

Vacated and remanded with instructions to dismiss the motion

1. The court applied its recent decision in Cook v. State, which eliminated the judge-made practice of trial courts ruling on motions for out-of-time appeal because no Georgia law ever gave trial courts that authority.
2. Cook directs that this rule applies to all cases still on direct review or not yet final, and that pending trial court orders deciding such motions on the merits must be vacated rather than left standing.
3. Because Polanco's case was still on direct review, the trial court's order denying his motion for out-of-time appeal had to be vacated, and the proper next step is for the trial court to dismiss the motion outright instead of ruling on it.
4. The court warned that any future attempt to appeal the conviction or the dismissal of the out-of-time appeal motion will likely be treated as untimely, but that Polanco may still be able to raise his claims through a habeas corpus petition, a separate proceeding challenging the legality of his imprisonment.
5. In a concurrence, Justice Ellington explained that Georgia's murder sentencing statute only allows death, life without parole, or life with the possibility of parole, so a life sentence split into 25 years with parole ineligibility followed by lifetime probation is not a sentence the law permits for felony murder.
6. The concurrence reasoned that because sentencing statutes for serious violent felonies and probation do not list murder among the crimes eligible for those special split sentences, the trial court's sentence was void even though the prosecution had agreed to it, since parties cannot consent to make an illegal sentence valid.

• out-of-time appeal
• felony murder sentencing
• void sentence
• habeas corpus
• guilty plea