Conner v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.

In the Supreme Court of Georgia

No. S26A1021

Lee Edward Conner

v.

The State

On Appeal from the Superior Court of Columbia County

No. 2018CR0544

Decided: September 9, 2026

MCMILLIAN, Justice.

Appellant Lee Edward Conner seeks an out-of-time appeal pursuant to OCGA § 5-6-39.1, which allows a criminal defendant to seek an out-of-time motion for new trial or notice of appeal un- der certain circumstances. Because Conner does not qualify for an out-of-time appeal, we conclude that the trial court was without jurisdiction to grant Conner’s request for an out-of-time appeal and therefore vacate the trial court’s order and remand for the trial court to enter an order dismissing Conner’s request. In ad- dition, because Conner’s notice of appeal was untimely, we dis- miss his appeal from the denial of his motion for new trial.

Conner was convicted of malice murder and other offenses on March 31, 2022, after a jury trial. Through counsel, Conner timely filed a motion for new trial, which the trial court denied on September 7, 2022, but Conner did not file a notice of appeal at that time. See OCGA § 5-6-38(a) (“A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of; but when a motion for new trial … has been filed, the notice shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the mo- tion.”). However, on December 18, 2025, through new counsel, Conner filed a “Request for Leave to File Out-Of-Time Notice of Appeal,” pursuant to OCGA § 5-6-39.1(a), noting that the State had “consented” to the request. On January 21, 2026, the trial court granted Conner’s request. Conner filed his out-of-time no- tice of appeal the same day.

OCGA § 5-6-39.1 provides two avenues through which a de- fendant may seek an out-of-time motion for new trial or notice of appeal. Under OCGA § 5-6-39.1(a)(1), a defendant may move for leave to file an out-of-time motion for new trial or notice of appeal upon satisfaction of certain criteria, 1 but only “within 100 days from the expiration of the time period for the filing of such … no- tice.” Alternatively, under OCGA § 5-6-39.1(b), a trial court may also grant an out-of-time motion for new trial or notice of appeal to a defendant “whose motion seeking an out-of-time motion for new trial or notice of appeal or whose granted out-of-time motion for new trial or notice of appeal was dismissed based upon the Supreme Court’s decision in Cook v. State, 313 Ga. 471 (2022), and its progeny,” 2 but only until June 30, 2026. OCGA § 5-6-

1 “(A) With the consent of the state; (B) By showing excusable neglect; (C) By showing that the failure to timely file such motion for new trial or notice of appeal was attributable to the deficient performance of such defendant’s counsel; or (D) For other good cause shown.” OCGA § 5-6-39.1(a)(1)(A)–(D).

2 In Cook, we held “that there was and is no legal authority for motions for out-of-time appeal in trial courts and that the out-of-time appeal procedure allowed in King [v. State, 233 Ga. 630 (1975)] and Furgerson [v. State, 234 Ga. 594 (1975)], approved in Rowland [v. State, 264 Ga. 872 (1995)], and followed in other cases, is not a legally cognizable vehicle for a convicted defendant to seek relief for alleged constitutional violations.” Id. at 506. Instead, we ex- plained that a defendant’s “remedy, if any, lies in habeas corpus.” Id. The en- actment of OCGA § 5-6-39.1 did not affect the potential for an out-of-time ap- peal remedy through the habeas corpus process.

39.1(b). “The trial court judge shall have jurisdiction to consider such motion for leave to file an out-of-time motion for new trial or notice of appeal.” OCGA § 5-6-39.1(a)(2).

Here, Conner is seeking an out-of-time appeal pursuant to subsection (a)(1); Conner does not argue, and the record does not support, that there has been a previous dismissal of an out-of- time appeal pursuant to Cook as required for an out-of-time ap- peal under subsection (b). Although Conner had the State’s con- sent under subsection (a)(1)(A), his December 2025 request for leave to file an out-of-time notice of appeal was filed far more than 100 days after the expiration of the time to file his notice of ap- peal, which occurred in October 2022.

We recently held that “time limits for seeking leave to file a notice of appeal [under OCGA § 5-6-39.1(a)(1)] are jurisdic- tional,” and where a motion did not meet them, “the trial court lacked jurisdiction to consider [Appellant’s] motion, and it properly dismissed the motion on that basis.” Merilien v. State, Case No. S26A0704, slip op. at 2–3 (Ga. Aug. 13, 2026) (2026 WL 2347990). As such, the trial court lacked jurisdiction to consider Conner’s request for leave to file an out-of-time notice of appeal under OCGA § 5-6-39.1(a) and should have dismissed Conner’s request for that reason, rather than granting it. By granting Con- ner’s request, the trial court ruled on the merits of a motion over which the trial court lacked jurisdiction or authority to grant, and “we will vacate a trial court’s order that considers the merits of an untimely motion.” Ware v. State, 313 Ga. 324 (2022). See Rouzan v. State, 313 Ga. 606, (2022) (“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.”).

Accordingly, we vacate the trial court’s order granting Con- ner’s request for leave to file an out-of-time notice of appeal under OCGA § 5-6-39.1(a), and this case is remanded for entry of an or- der dismissing Conner’s request for the reasons stated in this opinion. “Because a timely filed notice of appeal is an absolute prerequisite to this Court’s jurisdiction,” Conner’s appeal from the denial of his motion for new trial must be dismissed. Kelly v. State, 311 Ga. 827, 831 (2021). See Dougherty v. State, 315 Ga. 188, 190 (2022) (upon vacatur of order granting appellant’s mo- tion for out-of-time appeal, appeal from the untimely motion for new trial must be dismissed).

Appeal dismissed, order vacated, and case remanded. All the Justices concur.