Sims 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.

SUPREME COURT OF GEORGIA

Case No. S26C1307

October 14, 2026

The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

GREGORY SIMS v. THE STATE.

The Supreme Court today denied the petition for certiorari in this case.

All the Justices concur, except McMillian, J., who dissents, and is joined by Warren, P.J., and LaGrua and Pinson, JJ.

Court of Appeals Case No. A26A1278

SUPREME COURT OF THE STATE OF GEORGIA

Clerk's Office, Atlanta

I certify that the above is a true extract from the minutes of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk

MCMILLIAN, Justice, dissenting.

I would grant certiorari because the Court of Appeals erred in dismissing on mootness grounds Gregory Sims’s appeal of the denial of his motion to file an out-of-time appeal under OCGA § 5-6-39.1(a), the Court of Appeals’ decision is in conflict with deci- sions of this Court, and this is an issue that is likely to recur.

In this case, Petitioner Gregory Sims seeks an out-of-time appeal pursuant to OCGA § 5-6-39.1. 1 Sims pleaded guilty to criminal damage to property and related offenses on December 18, 2024. On July 7, 2025, Sims filed a motion for out-of-time appeal pursuant to OCGA § 5-6-39.1(a). The trial court denied Sims’s motion on the basis that Sims missed the 30-day deadline for filing a motion for new trial under OCGA § 5-5-40 and the 100- day deadline for filing an out-of-time motion under OCGA § 5-6- 39.1. Sims appealed the denial of his motion.

The Court of Appeals dismissed Sims’s appeal for lack of jurisdiction in an unpublished order. The Court of Appeals cor- rectly reasoned that Sims is not entitled to relief under OCGA § 5-6-39.1 because he neither filed a motion for out-of-time appeal within 100 days from the expiration of the time period for filing a

1 OCGA § 5-6-39.1(a)(1) provides that 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, but only “within 100 days from the expiration of the time period for the filing of such … notice.” Alternatively, under OCGA § 5-6- 39.1(b), a trial court may also grant an out-of-time motion for new trial or no- tice 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,” but only until June 30, 2026. OCGA § 5-6-39.1(b). The limited record does not show that there has been a previous dismissal of an out-of-time appeal pursuant to Cook as re- quired for an out-of-time appeal under subsection (b).

notice of appeal, nor had a motion for out-of-time appeal dis- missed under Cook v. State, 313 Ga. 471, 506 (2022). But the Court of Appeals, relying on its own precedent, went on to rule that because Sims is not entitled to pursue out-of-time relief, the propriety of the trial court’s ruling on his request for an out-of- time appeal was moot and the Court of Appeals therefore lacked jurisdiction. See Carlock v. Kmart Corp., 227 Ga. App. 356, 361 (1997) (a moot issue is one where a ruling is sought on a matter that has no practical effect on the alleged controversy or where the issues have ceased to exist); see also Ferguson v. State, 197 Ga. App. 443, 443 (1990) (where a defendant is not entitled to an out-of-time appeal, any request for appointment of counsel is ren- dered moot).

This was error. Although Sims’s request for leave to file an out-of-time notice of appeal was untimely below, that defect only affected the trial court’s jurisdiction over Sims’s request, not the appellate court’s jurisdiction over the appeal. See Martin v. State, S26A1488, slip op. at 1 (Ga. Sept. 22, 2026) (2026 WL 2831691) (affirming dismissal of motion for out-of-time appeal under OCGA § 5-6-39.1); Conner v. State, S26A1021, slip op. at 2 (Ga. Sept. 9, 2026) (2026 WL 2647699) (vacating trial court’s grant of out-of- time appeal which did not meet the timing requirements of OCGA § 5-6-39.1 and remanding for dismissal of the request for out-of- time notice of appeal); Merilien v. State, S26A0704, slip op. at 1 (Ga. Aug. 13, 2026) (2026 WL 2347990) (affirming dismissal of motion for out-of-time appeal where the trial court lacked juris- diction to consider the motion); Burkett v. State, 324 Ga. 415, 416 (2026) (rejecting district attorney’s argument that the Court lacked jurisdiction over the appeal from the dismissal of Burkett’s motion for leave to file an out-of-time appeal and addressing it on the merits). See generally Bonner v. State, 310 Ga. 426, 427–28 (2020) (retaining but vacating and remanding an appeal from an order denying on the merits an untimely motion to withdraw a guilty plea, noting that the trial court lacked jurisdiction to hear such a motion but that the motion’s untimeliness did not affect this Court’s appellate jurisdiction); Lay v. State, 289 Ga. 210, 211–12 (2011) (holding that the untimeliness of motion in arrest of judgment was “not a defect in appellate jurisdiction that will subject to dismissal an appeal from the trial court’s ruling on such a motion”).

Instead, the Court of Appeals should have addressed the merits of the appeal from the denial of the motion for out-of-time appeal. As we have recently explained, the “time limits for seek- ing leave to file a notice of appeal [under OCGA § 5-6-39.1(a)(1)] are jurisdictional,” 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, slip op. at 2–3. See Conner, slip op. at 2–3 (where a trial court erro- neously grants on the merits an untimely OCGA § 5-6-39.1 mo- tion over which the trial court lacked jurisdiction, the trial court’s order should be vacated with direction for the trial court to enter an order dismissing the motion). Thus, on the merits, the Court of Appeals should have concluded that the trial court lacked ju- risdiction over Sims’s OCGA § 5-6-39.1(a) and should have dis- missed it, rather than denying it.

Although the Court of Appeals properly determined that Sims was not entitled to pursue out-of-time relief under OCGA § 5-6-39.1, it then erroneously concluded that as a result, the “trial court’s ruling on his request for an out-of-time appeal is moot.” Mootness is not determined based on whether the trial court had jurisdiction or whether a party can succeed on the merits. In- stead, a case is moot “[w]hen the resolution of a case would be tantamount to the determination of an abstract question not aris- ing upon existing facts or rights . . . . When the remedy sought in litigation no longer benefits the party seeking it, the case is moot and must be dismissed.” McAlister v. Clifton, 313 Ga. 737, 738 (2022) (challenge to award of custody and visitation to minor daughter under the equitable caregiver statute is moot when the child turned 18 years old). Because Sims would have benefitted from the remedy that he sought (reversal of the denial of the out- of-time appeal), his appeal is not moot, and the Court of Appeals erred in concluding that it did not have appellate jurisdiction.

However, just because the Court of Appeals erred in its rea- soning and judgment does not mean that this Court should grant a petition for writ of certiorari. Supreme Court Rule 40(1) pro- vides that “[r]eview on certiorari is not a right. A petition for the writ will be granted only in cases of great concern, gravity, or im- portance to the public.” Examples of questions of gravity include when “[a] decision of the Court of Appeals on an important matter is in conflict with other decisions of the Court of Appeals or deci- sions of this Court” or “[t]he Court of Appeals has decided an im- portant question of state law that is likely to recur and has not been, but should be, settled by this Court.” Ga. Sup. Ct. R. 40(1)(a) & (c).

Here, the application of the mootness doctrine is an im- portant question of state law that affects all civil and criminal cases. And this petition for certiorari involves at least the third case in which the Court of Appeals has erred in determining that it has no jurisdiction when the defendant is not entitled to an out- of-time appeal. See Akins v. State, A26A1442 (Order dated March 11, 2026); Gaddis v. State, A26A1054 (Order dated January 27, 2026). Moreover, these decisions from the Court of Appeals con- flict not only with our decisions, as explained above, but other de- cisions of the Court of Appeals. See, e.g., Teague v. State, A26A1159, slip op. at 2 (Ga. Ct. App. Aug. 4, 2026) (2026 WL 2238625) (affirming denial of untimely motion for leave to file an out-of-time appeal); Thompson v. State, 379 Ga. App. 440, 441 (2026) (vacating trial court’s order granting motion for out-of-time appeal because the appellant was not entitled to an out-of-time appeal under OCGA § 5-6-39.1 and remanding for entry of an or- der dismissing the motion). And even though the unpublished na- ture of these orders ordinarily counsel towards not granting cer- tiorari, here the recurrence of this erroneous reasoning in un- published decisions means that there may never be an oppor- tunity to correct this error in a published case.

Accordingly, because the Court of Appeals erred in dismiss- ing Sims’s appeal on mootness grounds, and because this error is likely to recur without our intervention, I would grant Sims’s pe- tition for writ of certiorari, vacate the Court of Appeals’ opinion, and remand this case to the Court of Appeals to enter an order vacating the trial court’s order and directing the trial court to dis- miss Sims’s motion.

I am authorized to state that Presiding Justice Warren and Justices LaGrua and Pinson join in this dissent.