SUPREME COURT OF GEORGIA

Case No. S22A0199

April 19, 2022

The Honorable Supreme Court met pursuant to adjournment. 

The following order was passed:

SETH ROUZAN v. THE STATE.

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-oftime appeal based on his counsel’s failure to file a timely notice of 
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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, ___ Ga. ___ (___ SE2d ___) (2022 Ga. 

LEXIS 65, 2022 WL 779746) (Case No. S21A1270, decided Mar. 15, 

2022), this Court eliminated the judicially created out-of-timeappeal 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-oftime appeal in trial courts.” Id. at ___ (5) (slip op. at 82). 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) (slip op. at 80-81). 

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-oftime 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 
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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.

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
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 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. 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 
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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.