--- title: Rouzan v. State collection: opinions id: S22A0199 cite_as: Rouzan v. State, 313 Ga. 606 (2022) canonical_url: https://georgiacommons.org/opinions/S22A0199 md_url: https://georgiacommons.org/opinions/S22A0199.md text_url: https://georgiacommons.org/opinions/S22A0199/text source_url: https://www.courtlistener.com/opinion/10679910/rouzan-v-state/ date: 2022-04-19 status: published corpus_version: opinions-2026-09-14 license: Public record of the Supreme Court of Georgia, via CourtListener and the court's own website; see about.md publisher: Georgia Commons, an independent project of Georgia Civic Data. Not the State of Georgia. Not legal advice. up: https://georgiacommons.org/opinions/2022.md previous: https://georgiacommons.org/opinions/S22A0086.md next: https://georgiacommons.org/opinions/S22A0348.md index: https://georgiacommons.org/opinions/index.md omitted: opinion extras omitted_chars: 1979 omitted_url: https://georgiacommons.org/opinions/S22A0199.md?full=1 docket: S22A0199 citation: 313 Ga. 606 court: Supreme Court of Georgia case_type: criminal appeal disposition: Vacated and remanded with direction to dismiss the motion vote: All the Justices concur word_count: 894 date_filed_source: courtlistener citations: - 872 S.E.2d 288 record_source: courtlistener legal_areas: - criminal law - criminal procedure upstream_id: "10679910" summaries_model: claude-sonnet-5 --- # Rouzan v. State Supreme Court of Georgia, docket S22A0199, filed 2022-04-19, 313 Ga. 606. ## Opinion 313 Ga. 606 FINAL COPY S22A0199. ROUZAN v. THE STATE. ORDER OF THE COURT. In 2013, Seth Rouzan was convicted of malice murder and use of a firearm by a convicted felon during the commission of a felony. In his first appeal from his convictions, this Court vacated the judgment of conviction and remanded the case for the trial court to apply the correct test in exercising its discretion to decide whether other-acts evidence should have been admitted, directing that if the court decided that the evidence was properly admitted, then the court should re-enter the judgment so that Rouzan could file another appeal challenging that ruling. See Rouzan v. State, 308 Ga. 894, 901 (843 SE2d 814) (2020). On remand, the trial court entered an order purporting to deny Rouzan’s second amended motion for new trial, but the court failed to re-enter the judgment of conviction. Thus, this Court vacated the trial court’s order and remanded the case for the court to comply with the direction to reconsider the other-acts issue and either grant Rouzan a new trial or re-enter the judgment of conviction. See Case No. S21A0770 (Mar. 10, 2021). On the second remand, the trial court entered an order on March 16, 2021, re-entering the judgment of conviction and denying the motion for new trial. On June 18, 2021, Rouzan filed a motion for out-of- time appeal based on his counsel’s failure to file a timely notice of appeal. The trial court granted the motion on June 21, 2021, and Rouzan filed a notice of appeal on July 12, 2021. However, in Cook v. State, 313 Ga. ___ (___ SE2d ___) (2022), this Court eliminated the judicially created out-of-time-appeal procedure in trial courts, holding that a trial court is “without jurisdiction to decide [a] motion for out-of-time appeal” on the merits because “there was and is no legal authority for motions for out-of- time appeal in trial courts.” Id. at ___ (5). Cook also concluded that this holding is to be applied to “all cases that are currently on direct review or otherwise not yet final[,]” id., and directed that “pending and future motions for out-of-time appeals in trial courts should be dismissed, and trial court orders that have decided such motions on the merits . . . should be vacated if direct review of the case remains pending or if the case is otherwise not final.” Id. at ___ (4). Accordingly, the trial court’s June 21, 2021 order granting Rouzan’s motion for out-of-time appeal is vacated, and this case is remanded for the entry of an order dismissing Rouzan’s motion. Rouzan is advised that any subsequent attempt to appeal the trial court’s March 16, 2021 order re-entering the judgment of conviction and denying his motion for new trial will likely be dismissed as untimely. See OCGA § 5-6-38 (a). Furthermore, the trial court’s entry of an order on remand dismissing Rouzan’s motion for out-of- time appeal will be unlikely to present any cognizable basis for an appeal. See Henderson v. State, 303 Ga. 241, 244 (811 SE2d 388) (2018); Brooks v. State, 301 Ga. 748, 752 (804 SE2d 1) (2017). If Rouzan believes that he was unconstitutionally deprived of his right to appeal, he may be able to pursue relief for that claim through a petition for a writ of habeas corpus, along with any other claims alleging deprivation of his constitutional rights in the proceedings that resulted in his conviction. See OCGA § 9-14-41 et seq. Rouzan should be aware of the possible application of the restrictions that apply to such habeas corpus filings, such as the time deadlines provided by OCGA § 9-14-42 (c) and the limitation on successive petitions provided by OCGA § 9-14-51. All the Justices concur. NAHMIAS, Chief Justice, concurring. I agree that the trial court’s order granting Rouzan’s motion for an out-of-time appeal must be vacated and the motion must then be dismissed on remand pursuant to this Court’s recent decision in Cook v. State, 313 Ga. ___ (___ SE2d ___). But I emphasize that our ruling today does not preclude Rouzan from seeking relief for the unconstitutional deprivation of his right to a direct appeal in a petition for habeas corpus, where it appears that he should prevail given his counsel’s forthright admission in the motion that Rouzan lost his right to appeal because counsel inadvertently failed to file a new notice of appeal after the trial court re-entered the judgment of conviction. In navigating the procedural requirements of habeas corpus, Rouzan would certainly benefit from representation by pro bono counsel so that he can obtain his direct appeal and again raise his strong claims that on remand from this Court’s initial decision in this case, the trial court disregarded both the law of the case doctrine and the law regarding admission of other-acts evidence under OCGA § 24-4-404 (b) and that he is therefore entitled to a new trial. I am authorized to state that Presiding Justice Boggs and Justices Warren, Bethel, and Colvin join in this concurrence. Ordered April 19, 2022. Murder. Richmond Superior Court. Before Judge Craig. Robert L. Persse, for appellant. Jared T. Williams, District Attorney, Joshua B. Smith, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General, for appellee. ## Summaries written by Georgia Commons The following was written by claude-sonnet-5 from the opinion above and is not part of the court's opinion. Quote the opinion, not the summary. The Supreme Court of Georgia vacated a trial court order that had granted a Richmond County man an out-of-time appeal, holding that trial courts have no authority to decide such motions after the court's recent ruling in Cook v. State. ### Plain-language summary Seth Rouzan was convicted of malice murder in Richmond County. His case had already bounced back and forth between the trial court and the Supreme Court of Georgia twice over whether certain other-acts evidence was properly admitted. After the trial court finally re-entered his conviction, Rouzan's lawyer missed the deadline to file a new notice of appeal, so Rouzan asked the trial court for an out-of-time appeal, essentially permission to appeal late because of his lawyer's mistake, and the trial court granted it. While that appeal was pending, the Supreme Court of Georgia decided a different case, Cook v. State, ruling that trial courts never had legal authority to grant out-of-time appeals at all. Applying that new rule here, the court vacated the trial court's order granting Rouzan's late appeal and sent the case back so the trial court can dismiss the motion instead. The court noted Rouzan may still be able to raise his lost-appeal problem through a habeas corpus petition. ### Holding, as summarized Under the court's recent decision in Cook v. State, trial courts have no legal authority to rule on motions for out-of-time appeal, so any such motion must be dismissed rather than decided, and the trial court's order granting Rouzan's motion must be vacated and the motion dismissed on remand. ### Disposition Vacated and remanded with direction to dismiss the motion. All the Justices concur. ### Why it matters The decision confirms that Georgia trial courts can no longer grant out-of-time appeals, meaning defendants whose lawyers miss appeal deadlines must instead pursue habeas corpus, a more complex process with its own deadlines and limits on repeat filings. > The summarized reasoning, checked quotes, suggested questions, and the CourtListener opinion records (1,979 characters) are at https://georgiacommons.org/opinions/S22A0199.md?full=1