Burkett v. State

Julius Burkett Jr. pleaded guilty to malice murder and other crimes in Glascock County in 2006. Years later he asked for permission to file a late notice of appeal, but that request got caught up when the Supreme Court of Georgia ended the practice of allowing such late appeals in a 2022 case called Cook v. State. In 2025, the General Assembly passed a new law giving defendants like Burkett, whose late-appeal requests had been dismissed because of Cook, a fresh window to ask again. Burkett filed a new motion under that law, but the trial court dismissed it anyway, citing Cook. The Supreme Court of Georgia held that was a mistake: the new law gave Burkett a right to seek a late appeal, and the trial court needed to evaluate his request under the law's actual criteria, not the old Cook rule. The case goes back to the trial court to consider his motion properly.

The trial court erred by dismissing Burkett's motion under the old Cook rule because a 2025 statute, OCGA § 5-6-39.1, gave defendants whose motions were dismissed based on Cook a right to seek leave to file an out-of-time appeal, and the trial court must evaluate that motion under the statute's own criteria.

The ruling clarifies how Georgia's new statute helps defendants whose late-appeal requests were wrongly dismissed under the old Cook rule, giving them another chance to be heard. It also flags a coming trap: defendants who miss the separate deadline for guilty-plea appeals may still lose their chance to appeal even under the new law.

Vacated and remanded

1. The court first addressed a jurisdictional challenge from the District Attorney, who argued the appeal should have come as an application for discretionary appeal because it involved a guilty plea; the court rejected this because Burkett was appealing the dismissal of his motion for leave to file a late appeal, not the guilty plea itself, so the appeal was directly allowed under OCGA §§ 5-6-34(a)(1) and 5-6-35.
2. The court then applied the new statute, OCGA § 5-6-39.1, which the General Assembly passed in 2025 to revive cases dismissed under the old Cook v. State rule and to give affected defendants a right to move again for leave to file a late appeal within a set deadline.
3. Applying that rule to the facts, the court found Burkett qualified because his earlier motion was dismissed based on Cook and he filed his new motion within the statutory window, meaning the trial court should have evaluated his request under the statute's criteria instead of dismissing it under Cook.
4. The court declined to resolve the State's argument that Burkett waived his appeal rights when he pleaded guilty in 2006 in exchange for the State not seeking the death penalty, holding that the trial court must consider that argument first when it takes up Burkett's motion on remand.
5. The court flagged, for future guidance, that a separate 2025 amendment now requires guilty-plea appeals to be filed as applications for discretionary appeal within 30 days, and that the new out-of-time appeal statute does not cover late applications for discretionary appeal, meaning some defendants could still lose their appeal rights despite the new law.

• out-of-time appeal
• guilty plea
• malice murder
• Cook v. State
• new appeal statute