In the Supreme Court of Georgia

Decided: March 15, 2022

S21A1270. COOK v. THE STATE.

 WARREN, Justice.

When a convicted criminal defendant is unconstitutionally 

deprived of an appeal of right, which typically occurs because her 

counsel provided ineffective assistance in failing to file a timely 

appeal, she is entitled to an untimely or “out-of-time” appeal. In this 

case, we examine the difficult question of whether this Court should 

overrule our precedent allowing a criminal defendant who alleges

that she was unconstitutionally deprived of her appeal as of right to 

file a motion for out-of-time appeal in the trial court, as opposed to 

seeking a writ of habeas corpus as an exclusive remedy. After 

explaining the underpinnings of our precedent and engaging in an 

exhaustive stare decisis analysis, we conclude that the trial court 

out-of-time appeal procedure is not a legally cognizable vehicle for a 
2

convicted defendant to seek relief for alleged constitutional 

violations. 

* * *

In the Habeas Corpus Act of 1967, now codified as OCGA § 9-

14-40 et seq., the General Assembly created a post-conviction 

procedure for defendants to raise that—and any other—

constitutional claim. Defendants in Georgia began doing so, and in 

1974 this Court held in Neal v. State, 232 Ga. 96 (205 SE2d 284) 

(1974), that a defendant could not seek an out-of-time appeal from 

his conviction by motion in the trial court, explaining that he must 

file a petition for a writ of habeas corpus to seek relief for the “denial 

of the right of appeal or of the effective assistance of counsel on 

appeal” and affirming the trial court’s order dismissing the 

defendant’s motion. Id. at 96.

Nevertheless, the following year, without mention of Neal or 

the Habeas Corpus Act, this Court began to review appeals of trial 

court orders denying motions for out-of-time appeals on the merits 

and appeals following orders by trial courts granting out-of-time 
3

appeals. See King v. State, 233 Ga. 630, 630-631 (212 SE2d 807) 

(1975); Furgerson v. State, 234 Ga. 594, 595-596 (216 SE2d 845) 

(1975). Those cases did not constitute precedents on the proper way 

to seek an out-of-time appeal, but two decades later, in Rowland v. 

State, 264 Ga. 872 (452 SE2d 756) (1995), the Court for the first time 

held—without citing any applicable legal authority and without 

acknowledging or overruling the contrary holding in Neal—that a 

convicted defendant could seek an out-of-time appeal either in the 

trial court or in habeas corpus. See id. at 875. Trial courts thus 

continued to entertain motions for out-of-time appeal, and appellate 

courts continued to decide appeals following the rulings on such 

motions for many more years. 

This Court did not examine how the trial court out-of-time 

appeal procedure had been created and evolved; the inconsistencies 

that had developed between that procedure and other areas of 

established Georgia law; or how the procedure had become an 

unwitting breeding ground for legal errors made by both appellate 

and trial courts until we decided Collier v. State, 307 Ga. 363 (834 
4

SE2d 769) (2019), in 2019. Collier raised the profile of the trial court 

out-of-time appeal process, and given that the only way rules have 

been established for this judicially created procedure is by judges 

making them on a case-by-case basis, we have since seen additional 

cases that have called upon this Court to create the rules and 

parameters of the trial court out-of-time appeal procedure. 

In Collier, and in a case that soon followed, Schoicket v. State, 

312 Ga. 825 (865 SE2d 170) (2021), this Court determined that our 

precedent endorsing the trial court out-of-time appeal procedure as 

an alternative to habeas corpus had no valid legal foundation. See 

Collier, 307 Ga. 371-373, 376; id. at 379-382 (Peterson, J., concurring 

specially); Schoicket, 312 Ga. at 825. The question that follows is 

whether to maintain that precedent as a matter of stare decisis. We 

asked the parties in this case, as well as amicus curiae for major 

participants in the criminal justice system, to address that question.

Based on their input and our extensive consideration of the issue, 

we conclude that stare decisis considerations do not weigh against 

overruling our precedent that created the trial court out-of-time 
5

appeal procedure.

This Court has consistently held that the most important stare 

decisis factor is the soundness of the reasoning of the precedent at 

issue, and everyone involved in this case agrees that the reasoning 

supporting our precedent allowing motions for out-of-time appeal in 

trial courts—to the extent there has been any reasoning at all—is 

wholly unsound. There also is agreement that the precedent is not 

ancient and that it does not implicate traditional reliance interests. 

With respect to the fourth stare decisis factor that this Court 

typically considers—workability—we conclude that our precedent 

creating the trial court out-of-time appeal procedure has a 

fundamental and insurmountable workability problem, because it 

will perpetually require this Court to fill in the details of the 

procedure we created. Judicial administration of habeas corpus, 

which everyone agrees is an appropriate procedure for seeking an 

out-of-time appeal when a convicted criminal defendant is 

unconstitutionally deprived of an appeal of right, does not require 

judges to make up the rules that regulate that process because the 
6

General Assembly has established those rules by statute. But as 

Collier and Schoicket demonstrate, when it comes to the trial court 

out-of-time appeal procedural vehicle this Court invented, we are 

called upon to make up the rules that govern that procedure. And 

each time we do, we are required to step out of our proper judicial 

role and assume the role of law-makers—which is the work of the 

General Assembly. 

The dissent has no real answer to this problem. It also 

undervalues the unsoundness of our precedent and overstates the 

ways in which the procedure we created may work better than the 

habeas procedure that is legally proper. In the end, the dissent 

seeks to overcome our customary stare decisis analysis with a focus 

on the “entrenchment” of our precedent—a concept we have 

considered before in stare decisis analyses, but never to outweigh all 

other stare decisis factors and perpetuate an unworkable and wholly 

unsound precedent, as the dissent proposes here.

For these reasons, which are explained more fully below, we 

conclude that principles of stare decisis do not require us to maintain 
7

our unsound precedent creating or endorsing the trial court out-oftime appeal procedure, and we therefore overrule Rowland and its 

handful of progeny. We also disapprove King, Furgerson, and other 

decisions to the extent that they allowed out-of-time appeal claims 

to be litigated in trial courts without addressing the propriety of that 

procedure. Applying our holding to this case, we vacate the trial 

court’s order denying Cadedra Lynn Cook’s motion for an out-of-time 

appeal, and we remand the case to the trial court with direction that 

the motion be dismissed. 

1. Procedural Posture of Cook’s Appeal

In November 2013, Cook entered a negotiated plea of guilty to 

charges of felony murder and armed robbery, based on which the 

trial court entered a judgment of conviction and sentenced her to life 

in prison with the possibility of parole for felony murder and a 

concurrent 20-year term in prison for armed robbery.1 She did not 

 1 Cook’s co-indictee, Eddie Clark, pleaded guilty to felony murder, armed 

robbery, and obstruction of a law enforcement officer in February 2014. In 

2020, we vacated a trial court order denying his motion for out-of-time appeal 

and remanded the case for an evidentiary hearing to “determine whether plea 
8

file a timely appeal, but more than six years later, she filed a motion 

for out-of-time appeal in the trial court, contending that she was 

deprived of her right to appeal because of her plea counsel’s 

ineffective assistance.2 After a hearing, the trial court denied Cook’s 

motion for out-of-time appeal on the merits, and she timely appealed 

that decision. Cook and the State filed appellate briefs making 

arguments related to the merits of Cook’s motion. But in light of 

this Court’s recent examinations of the propriety of motions for outof-time appeals in trial courts and related issues in Collier, Kelly v. 

State, 311 Ga. 827 (860 SE2d 740) (2021), and Schoicket, we

requested and received supplemental briefing on the following two

questions3:

 

counsel’s ineffective assistance was responsible for Clark’s failure to pursue a 

timely appeal.” Clark v. State, 310 Ga. 489, 491 (852 SE2d 522) (2020) (citation 

and punctuation omitted).

2 As part of her motion for out-of-time appeal, Cook also sought an outof-time motion to withdraw her guilty plea. But we recently held that “a 

granted motion for out-of-time appeal does not confer a right to file an 

otherwise-untimely motion to withdraw a guilty plea.” Schoicket v. State, 312 

Ga. 825, 833 (865 SE2d 170) (2021).

3 We appreciate the supplemental briefs filed on behalf of the parties by 
9

Should this Court reconsider whether a criminal 

defendant who alleges that she was deprived of her right 

to appeal because of her counsel’s alleged ineffective 

assistance under Strickland v. Washington, 466 U.S. 668 

(104 SCt 2052, 80 LE2d 674) (1984), be permitted to seek 

a remedy for that alleged constitutional violation by filing 

a motion for out-of-time appeal in the trial court, as 

opposed to filing, as her exclusive remedy, a petition for 

writ of habeas corpus?

How do considerations of stare decisis apply in this 

analysis? 

2. Legal Background

(a) The Judicial Creation and Propagation of the Motion for 

Out-of-Time Appeal in Georgia Trial Courts.

In 1965, the United States Supreme Court granted certiorari 

to consider “whether the Fourteenth Amendment [to the United 

States Constitution] requires that the States afford state prisoners 

some adequate corrective process for the hearing and determination

of claims of violation of federal constitutional guarantees.” Case v. 

Nebraska, 381 U.S. 336, 337 (85 SCt 1486, 14 LE2d 422) (1965). But 

 

appellant’s counsel, the District Attorney, and the Attorney General. We are 

also grateful for the thoughtful briefs filed by amici curiae the Georgia 

Association of Criminal Defense Lawyers (“GACDL”) and the Prosecuting 

Attorneys’ Council of Georgia (“PAC”).
10

because the Nebraska legislature enacted, during the pendency of 

that case, a statutory post-conviction procedure that “provide[d] for 

a hearing of petitions . . . alleging denial of federal constitutional 

rights,” the Supreme Court did not address the merits of the 

question presented in Case and instead vacated the judgment below. 

Id. However, in the wake of two concurring opinions in Case that

expressed approval of states providing statutory post-conviction 

procedures and hope that such procedures would be broadly adopted 

in other states, see id. at 337-340 (Clark, J., concurring), 340-347 

(Brennan, J., concurring), many states enacted statutory postconviction procedures, including but not limited to state habeas 

corpus procedures. See 7 Wayne R. LaFave et al., Criminal 

Procedure § 28.11 (a) (4th ed., Nov. 2021 Update) (the states 

“responded en masse to the urgings of” the concurring Justices “and 

others, and today ‘in each of the 50 states, the principal 

postconviction remedy may be used, at a minimum, to raise claims 

that the conviction is void for lack of jurisdiction or was obtained in 

violation of a constitutional right.’”) (quoting 1 DONALD E. WILKES,
11

FEDERAL AND STATE POSTCONVICTION REMEDIES AND RELIEF 

HANDBOOK WITH FORMS 7 (2014–2015 ed.)).

Among those states was Georgia, which in 1967 enacted the 

Habeas Corpus Act. See Ga. L. 1967, p. 835 (codified as amended at

OCGA § 9-14-40 et seq.). The Act, which is codified as Article 2 of 

Chapter 14 of Title 9, applies to convicted defendants and says that 

“this article provides the exclusive procedure for seeking a writ of 

habeas corpus for persons whose liberty is being restrained by virtue 

of a sentence imposed against them by a state court of record.” 

OCGA § 9-14-41. OCGA § 9-14-42 (a) further specifies that any such 

person “who asserts that in the proceedings which resulted in his 

conviction there was a substantial denial of his rights under the 

Constitution of the United States or of this state may institute a 

proceeding under this article.” 

About two years after the enactment of Georgia’s Habeas 

Corpus Act, the United States Supreme Court held, in a federal case 

in which counsel failed to file a notice of appeal as requested by the 

defendant and thereby deprived the defendant of an appeal as of 
12

right, that the defendant “should be resentenced so that he may 

perfect an appeal in the manner prescribed by the applicable rules.” 

Rodriquez v. United States, 395 U.S. 327, 332 (89 SCt 1715, 23 LE2d 

340) (1969). See also Douglas v. California, 372 U.S. 353, 356-358

(83 SCt 814, 9 LE2d 811) (1963) (indigent defendants have a

constitutional right to appointed counsel for their first appeal as of 

right from a criminal conviction); Evitts v. Lucey, 469 U.S. 387, 396 

(105 SCt 830, 83 LE2d 821) (1985) (“A first appeal as of right . . . is 

not adjudicated in accord with due process of law if the appellant 

does not have the effective assistance of an attorney.”). 

In the years that followed, this Court began to hold that 

convicted defendants who were unconstitutionally deprived of their 

right to appeal as a result of a denial of counsel or as a result of trial 

counsel’s constitutionally ineffective assistance could obtain an “outof-time appeal” as relief in Georgia habeas corpus proceedings. See 

Roberts v. Caldwell, 230 Ga. 223, 224 (196 SE2d 444) (1973)

(reversing the denial of habeas relief because the petitioner “was 

denied appellate counsel on his first appeal,” and remanding the 
13

case “with direction to the habeas corpus court to enter an order 

providing for the appointment of counsel to determine if there is any 

justifiable ground for an appeal from the original convictions, and if 

such determination is in the affirmative, then an appeal may be filed 

and prosecuted with benefit of counsel even at this late date”) 

(emphasis supplied); McAuliffe v. Rutledge, 231 Ga. 745, 746 (204 

SE2d 141) (1974) (reversing the judgment of the habeas court 

because the petitioner “was indeed denied effective assistance of 

counsel in attempting to appeal his conviction,” and directing that 

the petitioner “be allowed, if he so desires, to file an out of time appeal

to the proper appellate court within 30 days from the date the 

remittitur from this court is filed in the trial court”) (emphasis 

supplied). See also Collier, 307 Ga. at 371 (observing that a “few 

years after Rodriquez, the ‘out of time appeal’ remedy began to 

appear in Georgia’s habeas corpus jurisprudence”); id. at 373 (“A

request for an out-of-time appeal based on a deprivation of 

constitutional rights clearly may be brought in a petition for a writ 
14

of habeas corpus.”).4

Accordingly, when this Court first encountered a motion for 

out-of-time appeal filed in a trial court (rather than in a habeas 

court) shortly after the Habeas Corpus Act’s enactment, we deemed 

the motion invalid. In Neal, we affirmed a trial court’s order 

dismissing an inmate’s motion seeking an untimely appeal from his

conviction on a guilty plea entered seven years earlier, explaining

that a petition for a writ of habeas corpus was “an adequate postconviction remedy” for “denial of the right of appeal or of the 

effective assistance of counsel on appeal.” 232 Ga. at 96 (citing 

McAuliffe, 231 Ga. at 745). In so doing, we specifically held that the 

 4 There is no dispute that an out-of-time appeal may still be sought as a 

remedy in a habeas corpus proceeding. See, e.g., Hall v. Jackson, 310 Ga. 714, 

724 (854 SE2d 539) (2021) (the appropriate remedy when a habeas court 

determines that appellate counsel provided ineffective assistance due to a 

conflict of interest “is to grant [the petitioner an] out-of-time appeal, which will 

allow him to start the post-conviction process anew with the assistance of 

conflict-free counsel”); Trauth v. State, 295 Ga. 874, 876 (763 SE2d 854) (2014) 

(“[W]here, as here, a pro se defendant has been improperly denied counsel for 

his first appeal, he is entitled to [habeas] relief in the form of having counsel 

appointed ‘to determine if there is any justifiable ground for an appeal from 

the original convictions, and if such determination is in the affirmative, file 

and prosecute a new direct appeal with the benefit of counsel.’”) (quoting 

Roberts, 230 Ga. at 224; punctuation omitted). 
15

motion “should have been filed [as a habeas petition] in the superior 

court wherein the petitioner [was] being detained, not in the 

convicting court.” Id. at 96-97.

Nevertheless, a year after Neal, without acknowledging our 

holding in that case or the existence of the Habeas Corpus Act, this 

Court began to review appeals from trial court denials of motions for 

out-of-time appeal, as well as appeals from convictions pursuant to 

the grants of such motions by trial courts, without addressing 

whether the out-of-time appeal procedure in the trial court was 

authorized in the first place. In King, 233 Ga. at 630-631, we 

considered on the merits an appeal from the trial court’s denial of a 

motion for out-of-time appeal, and in Furgerson, 234 Ga. at 595-596, 

we considered on the merits an appeal that followed the trial court’s

grant of a motion for out-of-time appeal. Notably, neither King nor 

Furgerson constituted precedent on the trial court out-of-time appeal 

procedure, because in those cases we merely considered the merits 

of an appeal following a trial court ruling on a motion for out-of-time 

appeal; we did not address whether the trial court procedure was 
16

valid. See Collier, 307 Ga. at 372 (“Notwithstanding [Neal], this 

Court began reviewing trial court rulings on out-of-time appeal 

motions without any discussion of the propriety of the out-of-time 

appeal process in the trial court.”) (citing King and Furgerson). See 

also Seals v. State, 311 Ga. 739, 745 (860 SE2d 419) (2021) (“[I]n 

none of those cases was there any discussion of jurisdiction at all, 

much less analysis and a holding on the issue. Decisions of this 

Court and of the Court of Appeals ‘do not stand for points that were 

neither raised by the parties nor actually decided in the resulting 

opinion,’ and ‘questions which merely lurk in the record, neither 

brought to the attention of the court nor ruled upon, are not to be 

considered as having been so decided as to constitute ‘precedents.’”)

(citation omitted).5 

 5 None of our early cases allowing the out-of-time appeal procedure in

trial courts cited any authority, with one exception: in 1978, this Court noted 

that the out-of-time appeal procedure in Georgia “has no codical basis” but 

“appears to have had its genesis in Byrd v. Smith, 407 F2d 363 (5th Cir. 1969).” 

Lay v. State, 242 Ga. 225, 225 n.1 (248 SE2d 611) (1978). See also Collier, 307 

Ga. at 371 n.9 (quoting Lay). But Byrd was a federal habeas decision requiring 

that Georgia “either allow an appeal at this time or permit an out-of-time 

appeal by whatever procedure is necessary.” 407 F2d at 366. Byrd did not 

purport to require Georgia to establish a state procedure other than habeas 
17

Then, two decades later in Rowland, this Court for the first 

time held squarely that an out-of-time appeal could properly be 

obtained in the trial court as well as in habeas corpus. Specifically, 

we concluded that the out-of-time appeal “granted where [counsel’s] 

deficiency involves not the trial but the denial of the right to appeal

. . . serves as a remedy” not only “for a habeas corpus petitioner who 

suffered a constitutional deprivation,” but also for “the criminal 

defendant who has shown ‘good and sufficient reason’ to a trial 

court.” Rowland, 264 Ga. at 875 (citations and punctuation 

omitted). We reached that conclusion without citing any applicable 

legal authority and without acknowledging or overruling our 

contrary holding in Neal. See id. at 875-876. However unreasoned 

it was, Rowland, rather than Neal, became the governing precedent 

on the trial court out-of-time appeal procedure in Georgia courts. 

See White v. State, 305 Ga. 111, 122 n.10 (823 SE2d 794) (2019) 

(explaining that when discord exists between older and newer 

 

corpus for considering alleged unconstitutional deprivations of the right to 

appeal.
18

precedents of a jurisdiction’s highest court, the more recent decision 

controls). See also Schoicket, 312 Ga. at 829 n.5 (citing White).

In sum: even though the General Assembly statutorily 

established habeas corpus as the exclusive procedure for vindicating 

a convicted defendant’s constitutional rights, including the 

deprivation of the right to appeal, and established the contours of 

the procedure to seek such relief, this Court allowed and then 

expressly endorsed a procedure parallel to, but distinct from, habeas 

corpus for convicted defendants to seek vindication of alleged 

constitutional violations that frustrated their right to appeal. And 

allowing convicted defendants to do so in turn allowed them to 

circumvent the requirements and restrictions imposed by the 

Habeas Corpus Act. 

Our error was significant. By judicially creating this trial court 

out-of-time appeal procedure—a procedure that is neither 

authorized by our common law6 nor established by statute—this 

 6 At common law, courts could only modify their judgments in the same 

term of court, which in Georgia ranges from two to eight months long. See
19

Court acted not as a body of judges, but as a body of lawmakers. Cf. 

Duke v. State, 306 Ga. 171, 174, 186 (829 SE2d 348) (2019)

(unanimously overruling precedent that “created a judicial

exception to the statutory requirements for bringing an 

interlocutory appeal” and recognizing that the “scheme for appellate 

interlocutory review is legislative in nature”) (citation and 

punctuation omitted). In so doing, we usurped the power of the 

Legislative Branch, which implicates separation-of-powers concerns 

under the Georgia Constitution. See Ga. Const. of 1983, Art. I, Sec. 

II, Par. III (“The legislative, judicial, and executive powers shall 

forever remain separate and distinct; and no person discharging the 

duties of one shall at the same time exercise the functions of either 

of the others . . . .”). See also Duke, 306 Ga. at 186 (“We reiterate 

this core separation of powers principle today. . . . [T]he General 

 

Gray v. State, 310 Ga. 259, 262 (850 SE2d 36) (2020) (“Georgia courts have long 

applied the common-law rule that the trial court has the inherent authority to 

modify a judgment within the term of court and that a motion made during the 

term serves to extend the power to modify.”) (citation and punctuation 

omitted); OCGA § 15-6-3 (setting out the “terms of court for the superior courts 

for each of the judicial circuits”). We are not aware of any procedure at common 

law by which a trial court may allow a party to challenge a conviction outside 

the term of court.
20

Assembly is free to change or abolish th[e] requirement [that a trial 

court must issue a timely certificate of immediate review before an 

interlocutory appeal may be pursued]. But this Court lacks that 

authority, and we should never have claimed it.”). Suffice it to say 

that we did not identify that concern at the time we decided 

Rowland or for many years thereafter. Instead, we continued for 

more than two decades to decide cases following trial court rulings 

on motions for out-of-time appeals—and apparently did so without 

consideration of the statutory and decisional authorities Rowland 

ignored in reaching its holding.

(b) Two Decades of Misinterpretation and More Recent 

Course-Correction With Respect to the Availability of Outof-Time Appeals After Guilty Pleas.

As it turns out, our unsupported and seemingly unthinking 

creation of the trial court out-of-time procedural vehicle was 

matched by our long-standing erroneous application of the 

substantive standard for granting an out-of-time appeal following a 

conviction by guilty plea. Indeed, over the course of many years, 

“this Court and the Court of Appeals [ ] in hundreds of cases” 
21

erroneously “required defendants whose convictions came by guilty 

pleas to show that they could actually prevail in an appeal before 

allowing them that appeal out-of-time.” Ringold v. State, 304 Ga. 

875, 883 (823 SE2d 342) (2019) (Nahmias, P.J., concurring). That 

requirement was flatly inconsistent with the United States Supreme 

Court’s holding in Roe v. Flores-Ortega, 528 U.S. 470 (120 SCt 1029, 

145 LE2d 985) (2000)—controlling precedent on Sixth Amendment 

ineffective-assistance-of-counsel claims involving the failure to file a 

timely appeal from a criminal conviction, whether that conviction 

was based on a guilty plea or a guilty verdict after a trial.7 See 

 7 In Flores-Ortega, which involved a lawyer’s failure to file a notice of 

appeal following the entry of his client’s guilty plea, the Supreme Court held, 

among other things, “that when counsel’s constitutionally deficient 

performance deprives a defendant of an appeal that he otherwise would have 

taken, the defendant has made out a successful ineffective assistance of 

counsel claim entitling him to an appeal” and that “it is unfair to require an 

indigent, perhaps pro se, defendant to demonstrate that his hypothetical 

appeal might have had merit before any advocate has ever reviewed the record 

in his case in search of potentially meritorious grounds for appeal.” 528 U.S. 

at 484, 486 (emphasis in original). See also Garza v. Idaho, ___ U.S. ___ (139 

SCt 738, 746-747, 203 LE2d 77) (2019) (explaining and reaffirming FloresOrtega). Notably, we had recognized Flores-Ortega and properly applied its 

holding to the analysis of requests for out-of-time appeals from convictions 

after trials. See White v. State, 277 Ga. 647, 648 (594 SE2d 329) (2004). See 

also Collier, 307 Ga. at 366 (citing White).
22

Ringold, 304 Ga. at 883 (Nahmias, P.J., concurring). As a result, in 

2019 we overruled two decades’ worth of cases from this Court and 

the Court of Appeals involving analysis of out-of-time appeals that 

conflicted with Flores-Ortega. See Collier, 307 Ga. at 376-378.8 

A review of those overruled cases—40 from this Court and 46 

from the Court of Appeals—reveals that, for the 20-plus years that 

Georgia’s appellate courts endorsed an incorrect ineffectiveassistance-of-counsel standard for the analysis of motions for out-oftime appeals from guilty-plea convictions, trial courts routinely 

denied such motions without a hearing and appellate courts 

affirmed those denials in short order. Rejecting those motions was, 

in most cases, an unsurprising result, given that our courts were 

applying a standard that required a defendant seeking an out-oftime appeal from her guilty-plea conviction—a defendant who 

almost always was not represented by counsel—not only to allege 

 8 Among the cases Collier overruled was Morrow v. State, 266 Ga. 3 (463 

SE2d 472) (1995), and its progeny—which held that “an appeal will lie from a 

judgment entered on a guilty plea only if the issue on appeal can be resolved 

by facts appearing in the record,” id. at 3—which was also inconsistent with 

Flores-Ortega. See Collier, 307 Ga. at 367-369.
23

and prove that her right to appeal was frustrated by her plea 

counsel’s unconstitutionally deficient performance, but also to 

prove, based on the limited record, that her appeal would have 

succeeded. Since Ringold and Collier, we have observed an 

increasing number of appeals docketed in this Court that stem from 

the denial of motions for out-of-time appeal, and many of those cases 

involve motions for out-of-time appeal—like the one in this case—

that were filed in the trial court many years after the judgment was 

entered on the defendant’s guilty plea. Indeed, we have identified 

at least five such appeals to this Court in the past year alone. See, 

e.g., Boone v. State, ___ Ga. ___, ___, 2022 WL 162789, at *1 (Case 

No. S21A1065, decided Jan. 19, 2022); Mobuary v. State, 312 Ga. 

337, 338 (862 SE2d 553) (2021); Harvey v. State, 312 Ga. 263, 263 

n.1 (862 SE2d 120) (2021); Terry-Hall v. State, 312 Ga. 250, 251 (862 

SE2d 110) (2021); McDaniel v. State, 311 Ga. 367, 368 (857 SE2d 

479) (2021). See also Collier, 307 Ga. at 374 & n.14 (recognizing that 

“some of our out-of-time appeal cases have involved long delays after 

conviction” and citing two 2011 cases with delays of 15 and 26 years).
24

(c) Habeas Corpus Reaffirmed as the “Comprehensive 

Statutory Means” For Vindicating Alleged Constitutional 

Violations After a Final Conviction.

In 2019—the same year we decided Collier—this Court also 

reaffirmed that “‘habeas corpus is the exclusive post-appeal 

procedure available to a criminal defendant who asserts the denial 

of a constitutional right.’” Mitchum v. State, 306 Ga. 878, 883 (834 

SE2d 65) (2019) (quoting State v. Smith, 276 Ga. 14, 15 (573 SE2d 

64) (2002); emphasis supplied in Mitchum). In explaining our 

holding in Mitchum—that an extraordinary motion for new trial 

“was not the appropriate vehicle” for a convicted defendant to pursue 

alleged constitutional deprivations because “habeas corpus provided 

an adequate remedy”—we explained the foundational principle that 

“when the General Assembly in 1967 expanded the scope of matters 

that could be addressed through habeas corpus to include 

constitutional deprivation claims, an adequate statutory remedy 

was created to address those constitutional claims.” Id. at 884. We 

concluded that the Habeas Corpus Act amounted to the “creation of 

a comprehensive statutory means through which constitutional (and 
25

only constitutional) claims could be pursued.” Id. See also 

Valenzuela v. Newsome, 253 Ga. 793, 794-795 (325 SE2d 370) (1985) 

(explaining that OCGA § 9-14-42 (a) also allowed claims for alleged 

violations of state statutes until a 1982 amendment to the Habeas 

Corpus Act). Mitchum’s holding was consistent with prior cases in 

which this Court rejected attempts to use post-conviction procedures

other than habeas corpus as a vehicle to vindicate a convicted

defendant’s constitutional rights. See, e.g., Daker v. Ray, 275 Ga. 

205, 206 (563 SE2d 429) (2002) (rejecting the writ of mandamus as 

a means to challenge a conviction and sentence as void and 

identifying habeas corpus as the exclusive remedy under the 

circumstances); Davis v. State, 274 Ga. 865 (561 SE2d 119) (2002) 

(rejecting untimely motion to withdraw guilty plea and noting that 

the only means available to challenge the convicted defendant’s 

guilty plea was habeas corpus). Nevertheless, the motion for out-oftime appeal procedure remained available for convicted defendants 

to seek vindication of one (but only one) of their constitutional 

rights—the right to an appeal as of right—in the court of their 
26

conviction, as opposed to only in a habeas court after filing a habeas 

petition.

(d) Recent Skepticism About the Trial Court Out-of-Time 

Appeal Procedure.

It was not until Collier in 2019 that this Court first examined

in a published opinion how the trial court out-of-time appeal 

procedure had been created, how it evolved, and how it had persisted 

as a parallel procedure for convicted defendants who could also use 

habeas corpus proceedings to vindicate their constitutional rights. 

Although we did not determine in Collier “whether the out-of-time 

appeal process in the trial court should be maintained,” we began 

expressing skepticism in that regard, recognizing that “the trial 

court process is certainly an exception to the general rule that a trial 

court’s jurisdiction ends following a final conviction and the end of 

the term of court.” Collier, 307 Ga. at 376. Our review of the history 

of that process made apparent that the relevant precedents were 

conspicuously short on reasoning and authority; Collier explained 

that “our out-of-time appeal jurisprudence . . . focused more on the 
27

remedial purpose served by an out-of-time appeal and less on the 

nature of the remedy or the appropriate process for obtaining it.” Id. 

at 371-373.

Moreover, given the concern the State raised in Collier about 

“long-delayed out-of-time appeal motions filed in the trial court,” id. 

at 370, we acknowledged that motions for out-of-time appeal in trial 

courts were “not directly barred by the application of any statute of 

limitation” and considered whether the common-law doctrine of 

laches (also known as “prejudicial delay”) could apply to the

proceedings to bar a convicted defendant from obtaining relief, id. at 

375. The majority opinion concluded that the State could “raise the 

defense of ‘prejudicial delay’ to out-of-time appeal motions filed in 

the trial court,” id. at 370, and further noted that the State could 

argue “and the trial court [could] consider the time periods, factors, 

and other criteria set out in the most analogous limitation and 

laches provisions—those found in the Habeas Corpus Act—in 

determining whether the State’s defense has merit and the 
28

defendant’s motion should be dismissed,” id. at 375.9 Four Justices 

did not join that portion of the Collier majority, however, 

characterizing the majority opinion’s endorsement of a prejudicial 

delay defense as “tinker[ing] at the margins of the mess we have 

made.” Id. at 379 (Peterson, J., concurring specially, joined by 

Blackwell, Boggs, and Bethel, JJ.).

Not long after Collier, in Kelly v. State, we addressed another 

outgrowth of our out-of-time-appeal jurisprudence: our prior holding 

in Maxwell v. State, 262 Ga. 541, 542-543 (422 SE2d 543) (1992),

that if an out-of-time appeal is granted in the trial court, the

defendant “is permitted to file a second motion for new trial in order 

to raise claims of trial counsel ineffectiveness that could not have 

been raised in the initial motion for new trial.” Kelly, 311 Ga. at 

829. Maxwell stated “that the grant of an out-of-time appeal permits 

 9 It is notable that the absence of a time limitation for the trial court outof-time appeal procedure stands in stark contrast with other post-conviction 

filings in trial courts, such as a motion for new trial—which must be filed 

“within 30 days of the entry of the judgment,” OCGA § 5-5-40 (a), and a motion 

to withdraw a guilty plea—which under the common law must be filed within 

the same term of court, see Schoicket, 312 Ga. at 827. 
29

a defendant, by the grace of the court, to start the post-conviction 

process anew.” 262 Ga. at 542-543. We determined that this

statement in Maxwell (and later cases) was overbroad, disapproved 

that broad reading, and held that a defendant who had been granted 

a motion for out-of-time appeal in the trial court was not authorized 

to file a second motion for new trial that did not involve ineffectiveassistance-of-counsel claims that she was “unable to assert in her 

initial motion for new trial.” Kelly, 311 Ga. at 829, 831. We 

dismissed Kelly’s appeal as a result. See id. at 831. 

Most recently, in Schoicket, we were faced with the question of 

whether to implement a “logical extension” of our precedents to 

allow a defendant who had obtained an out-of-time appeal in the 

trial court also to file an otherwise-untimely motion to withdraw her 

guilty plea, or whether to draw the line and stop “trail-blazing” with 

our “invented remedy.” 312 Ga. at 825-826, 832. In declining to 

extend our out-of-time appeal jurisprudence to motions to withdraw 

guilty pleas, Justice Peterson, writing for the majority,

acknowledged that “this Court ignored contrary precedent and 
30

statutes in creating out of whole cloth the motion for out-of-time 

appeal in the trial court.” Id. at 825. The majority opinion 

recognized that we “should not have invented” that post-conviction 

procedure, id. at 826, and that “[f]or decades now, our postconviction jurisprudence has been described as a ‘tangle’ of 

‘confusing’ procedural rules,” id. at 830. Regarding the “competing 

concerns involved in post-conviction relief procedures—addressing 

violations of a defendant’s constitutional rights on the one hand, and 

ensuring finality on the other,” the majority opinion pointed out that 

“the General Assembly has enacted habeas statutes balancing these 

competing concerns” and that “[w]e lack the authority to substitute 

our policy preferences for those of the General Assembly and thereby 

allow a defendant to skirt the legislatively established process.” Id. 

at 831. Even one of the dissents in Schoicket recognized that

[a]t multiple points, we could have retracted our

recognition of the out-of-time appeal procedural vehicle 

and once again adhered to our conclusion in Neal that the 

General Assembly in the Habeas Corpus Act provided an 

adequate remedy—and the exclusive one—for the right of 

appeal frustrated by the ineffective assistance of counsel.

Schoicket, 312 Ga. at 838 (Ellington, J., dissenting in part).
31

3. Stare Decisis Analysis

In recognition of these concerns, in this case we asked the 

parties and amici curiae for briefs and oral arguments addressing 

whether the procedural vehicle of a motion for out-of-time appeal in 

a trial court should continue to be available to a convicted defendant 

who alleges that she was deprived of her right to appeal because of 

her counsel’s alleged ineffective assistance, as opposed to a petition 

for writ of habeas corpus serving as the exclusive procedural vehicle 

through which to seek that remedy. That question is a difficult one:

given that the judicially created motion for out-of-time appeal 

procedure in the trial court has existed for many years now, do

principles of stare decisis require that it be perpetuated? See Nalls 

v. State, 304 Ga. 168, 179 (815 SE2d 38) (2018) (“Before we overrule 

our incorrectly decided case law on this point, we must consider 

whether stare decisis counsels us not to.”); Ramos v. Louisiana, ___ 

U.S. ___, ___ (140 SCt 1390, 1412, 206 LE2d 583) (2020) 

(Kavanaugh, J., concurring in part) (“[A]pplying the doctrine of stare 

decisis, this Court ordinarily adheres to precedent, but sometimes 
32

overrules precedent. The difficult question, then, is when to overrule 

an erroneous precedent.”). As explained more below, we conclude 

that stare decisis principles do not weigh in favor of adhering to our 

trial court out-of-time appeal precedent and that we should revert 

to the law properly established by the Habeas Corpus Act and our 

decision in Neal.

(a) Background Principles

Stare decisis is a “principle of policy,” State v. Jackson, 287 Ga. 

646, 658 (697 SE2d 757) (2010) (citation and punctuation omitted),

under which courts “generally stand by their prior decisions, 

because it promotes the evenhanded, predictable, and consistent 

development of legal principles, fosters reliance on judicial 

decisions, and contributes to the actual and perceived integrity of 

the judicial process,” Pounds v. State, 309 Ga. 376, 382 (845 SE2d 

48) (2020) (citation and punctuation omitted). This Court has a 

longstanding tradition of considering stare decisis when evaluating 

whether to overrule its precedents, and we invoked such an analysis 

even before we articulated in Jackson a more consistent set of factors 
33

we would consider in doing so. See, e.g., Leary v. Durham, 4 Ga. 

593, 601 (1848); Robison v. Beall, 26 Ga. 17, 60 (1858), disapproved 

in part on other grounds, Fitzpatrick v. McGregor, 133 Ga. 332, 339 

(65 SE 859) (1909); Adams v. Brooks, 35 Ga. 63, 66 (1866); City of 

Atlanta v. First Presbyterian Church, 86 Ga. 730, 732-733 (13 SE 

252) (1891); Ellison v. Ga. R.R. & Banking Co., 87 Ga. 691, 696 (13 

SE 809) (1891); Rogers v. Carmichael, 184 Ga. 496, 510-512 (192 SE 

39) (1937); Davis v. Penn Mut. Life Ins. Co., 198 Ga. 550, 563-564 

(32 SE2d 180) (1944); Humthlett v. Reeves, 211 Ga. 210, 215 (85 

SE2d 25) (1954); Sharpe v. Dept. of Transp., 267 Ga. 267, 270-271 

(476 SE2d 722) (1996); Etkind v. Suarez, 271 Ga. 352, 356-358 (519 

SE2d 210) (1999); Harper v. State, 286 Ga. 216, 218 (686 SE2d 786) 

(2009). Since Jackson, we have regularly considered in our stare 

decisis analyses “a number of factors, including the age of the 

precedent, the reliance interests involved, the workability of the 

prior decision, and most importantly, the soundness of its 

reasoning.” Pounds, 309 Ga. at 382 (citation and punctuation 

omitted). And although the soundness, age, reliance, and 
34

workability factors have provided a useful framework for such

analyses, the list of factors we have considered has never purported 

to be exclusive. See, e.g., Jackson, 287 Ga. at 658 (“[W]e consider 

factors such as . . . .”) (citing Montejo v. Louisiana, 556 U.S. 778 (129 

SCt 2079, 173 LE2d 955) (2009)) (emphasis supplied).

“But stare decisis is not an inexorable command.” Pounds, 309 

Ga. at 382 (citation and punctuation omitted). See also Woodard v. 

State, 296 Ga. 803, 812 (771 SE2d 362) (2015) (stare decisis is not a 

“mechanical formula of adherence to the latest decision”) (citation 

and punctuation omitted). “[I]n reconsidering our prior decisions, 

we must balance the importance of having the question decided

against the importance of having it decided right.” Gilliam v. State, 

312 Ga. 60, 62 (860 SE2d 543) (2021) (citation and punctuation 

omitted; emphasis in original). See also Harper, 286 Ga. at 218 

(“While ‘the rule of stare decisis is a wholesome one, it should not be 

used to sanctify and perpetuate error. Courts, like individuals, but 

with more caution and deliberation, must sometimes reconsider 

what has been already carefully considered, and rectify their own 
35

mistakes.’”) (quoting City of Atlanta, 86 Ga. at 732-733) 

(punctuation omitted). To that end, we have explained that the 

source of the precedent we are examining plays an important role in 

that balance: “stare decisis carries less weight when our prior 

precedent involved the interpretation of the Constitution,” Olevik v. 

State, 302 Ga. 228, 245 (806 SE2d 505) (2017), whereas the force of 

stare decisis is generally greater with respect to an erroneous 

interpretation of statutory law, see Cooper Tire & Rubber Co. v. 

McCall, 312 Ga. 422, 435 (863 SE2d 81) (2021) (“Considerations of 

stare decisis have greater weight with regard to precedents 

interpreting statutes than precedents regarding constitutional 

issues.”). We have supported this distinction by reasoning that “it 

is much harder for the democratic process to correct or alter our 

interpretation of the Constitution than our interpretation of a 

statute or regulation.” Gilliam, 312 Ga. at 62. 

Here, because the few actual precedents we are reconsidering 

are cases in which this Court ignored or contravened the statutory 

scheme established by the Habeas Corpus Act, we apply greater 
36

weight to them than we would if they were rooted in our

interpretation of the federal or state Constitutions. See Cooper Tire 

& Rubber Co., 312 Ga. at 435. However, even within the context of 

statutory stare decisis, when “we have misinterpreted a statute by 

failing to consider the statute’s language at all, stare decisis applies 

with less force.” Nalls, 304 Ga. at 179-180 (emphasis supplied). 

Thus, considerations of stare decisis apply with less force to 

Rowland and its progeny than they otherwise would to precedents 

rooted in statutory interpretation. That is because Rowland and its 

pre-Collier progeny utterly ignored the statutory text and context of 

the Habeas Corpus Act and indeed contradicted Neal’s earlier and 

definitive holding that correctly applied the statutory scheme set 

forth in the Act “without engaging in any analysis of stare decisis.” 

Willis v. State, 304 Ga. 686, 706 (820 SE2d 640) (2018). Keeping 

these principles in mind, we turn to the stare decisis analysis in this 

case.

(b) Soundness of the Reasoning

We have consistently said that the soundness of the reasoning 
37

of the relevant precedent is the most important factor in the stare 

decisis analysis. See, e.g., Pounds, 309 Ga. at 382; Olevik, 302 Ga. 

at 245; Jackson, 287 Ga. at 658. As we explained above and will 

explain more below, our creation and endorsement of the trial court 

out-of-time-appeal procedural vehicle, and our precedents that flow 

from that creation, are unequivocally unsound. 

As is apparent from our review of Georgia law in Division 2 (a)

above, the separate procedure that this Court created for obtaining 

an out-of-time appeal in the trial court has neither a statutory nor a 

common-law basis. The initial cases in which we considered the 

merits of an appeal following a trial court ruling on a motion for an 

out-of-time appeal, King and Furgerson, did not acknowledge the 

existence of the Habeas Corpus Act, let alone distinguish between 

motions for out-of-time appeals sought in a trial court and similar 

filings made in a habeas court. Rowland, on the other hand,

acknowledged that the defendant in that case could seek relief in 

habeas, but offered no analysis of the import of that point, and was 

otherwise devoid of reasoning showing why a trial court out-of-time-
38

appeal procedure could or should exist. And Rowland’s progeny 

wholly lacked acknowledgment and analysis of this state’s postconviction statutory scheme. Most importantly for these purposes,

Rowland and its progeny not only failed to cite precedent to support 

our Court’s creation of a trial court out-of-time appeal procedural 

vehicle; they also ignored precedent from this Court (Neal) that 

rejected the very action that Rowland and its progeny endorsed. As 

Justice Peterson’s special concurrence in Collier recognized, we 

“created out of whole cloth” the trial court out-of-time-appeal 

procedure; we did so “without any analysis whatsoever”; and “there 

can be no doubt that our reasons—to the extent that we’ve had any—

have been purely ‘policy.’” 307 Ga. at 379-381 (Peterson, J., 

concurring specially).10 

 10 By the time we decided Schoicket two years later, eight Justices 

expressly agreed that we had “creat[ed] out of whole cloth” the out-of-time 

appeal procedure. See Schoicket, 312 Ga. at 825; id. at 841-842 (Colvin, J., 

dissenting in part but agreeing that we created the out-of-time-appeal 

procedure “out of whole cloth” and proposing that we “follow Neal,” “eliminat[e] 

the stand-alone out-of-time appeal procedure,” and “require prisoners seeking 

an out-of-time appeal and associated remedies to use the habeas procedures 

that the General Assembly has afforded”).
39

We have also outlined above the inconsistency of the judicially

created trial court out-of-time-appeal procedure with the legal 

conclusion articulated in other cases, including in Neal and 

Mitchum, that the Habeas Corpus Act serves as the exclusive 

procedural vehicle in Georgia law for convicted defendants to seek 

relief for alleged constitutional violations relating to their 

convictions. See Pounds, 309 Ga. at 382 (overruling cases holding 

that a late-filed motion for new trial was void and an order denying 

it must be affirmed, in part because the reasoning of the prior 

precedent at issue was “inconsistent with applicable legal principles 

articulated in our other case law in this area”). Our cases creating 

the motion for out-of-time appeal in the trial court are thus

“unsound and contrary to the body of our law,” Jackson, 287 Ga. at 

658, and that weighs most heavily in our stare decisis analysis.11

 11 In his dissent in this case, Justice Peterson argues—as he did in his 

dissent in Frett—that “once we’ve determined that a decision was unsound, the 

other Jackson factors never seem to be particularly meaningful.” See Frett v. 

State Farm Workers’ Compensation, 309 Ga. 44, 63-64 (844 SE2d 749) (2020)

(Peterson, J., dissenting). We disagree, and our answer today is the same one 

the Court provided in Frett: 
40

Moreover, an unusual aspect of this case is that neither the 

State nor any of the amici curiae—which represent the views of both 

prosecutors (PAC) and criminal defense lawyers (GACDL)—

contends that our judicial decisions creating or endorsing the trial 

court out-of-time appeal procedural vehicle are supported by sound 

reasoning or relevant authority.12 In light of all of these 

 

[I]t is unsurprising that the Court would expend the judicial time 

and resources to write an extensive analysis of stare decisis mostly 

in cases in which the Court decides to depart from the usual rule 

that we adhere to our precedents, and it is equally unsurprising 

that we would say little about stare decisis in the numerous cases 

in which we stand by our precedents. Indeed, there are plenty of 

recent cases in which we have adhered to and applied our statutory 

precedents without any discussion of—or any express reference 

to—the doctrine of stare decisis, even when a party has asked us 

to revisit those precedents. In a perfect world in which judicial 

time and resources were not so limited, perhaps it would be better 

to write about stare decisis whenever a court unremarkably 

adheres to its precedents. But that is not reality for very busy 

courts like ours.

Id. at 62 n.15 (majority opinion) (citations omitted).

12 All of the parties and amici who have weighed in on the stare decisis 

analysis of this Court’s cases creating the out-of-time appeal procedural vehicle 

agree that those precedents are unsound. The Attorney General contends that 

“this Court’s decisions holding that motions for out-of-time appeals are 

available to raise ineffective-assistance claims are plainly wrong. The rule 

conflicts with Georgia’s statutory scheme for post-conviction relief, as well as 

this Court’s other cases.” The District Attorney contends that “the soundness 

of the reasoning for these cases . . . has certainly been ‘confusing’ at best, if not, 

altogether unsound, regardless of how well-intended they are.” Amicus PAC 
41

considerations, such “significant unsoundness cuts heavily in favor 

of overruling” our prior precedent. Duke, 306 Ga. at 184 (citation 

and punctuation omitted).

(c) Age of Precedent, Traditional Reliance Interests, and 

“Entrenchment”

Two other familiar stare decisis factors—age and reliance 

interests—are nominally distinct, but can also be intertwined. This 

makes sense: the older a precedent is, the more opportunity it has 

to become part of the legal landscape on which the public, the bench 

and bar, and others rely. But cf., e.g., Frett v. State Farm Employee 

Workers’ Compensation, 309 Ga. 44, 60 (844 SE2d 749) (2020) 

(pointing out, in the course of overruling an 85-year-old precedent, 

the opposite phenomenon and noting that we had “never cited [the 

 

states that “the basis for the creation of an out-of-time appeal is unwieldy, 

contradictory, and unsound, as it creates two paths to relief, contradicts 

statute, and does not lead to finality in judgment.” And even GACDL concedes 

that “[t]he out-of-time appeal is a jerry-rigged remedy, illegitimate but 

practical,” and that “[t]here can be little doubt at this point that [this] Court 

was without authority to craft the out-of-time-appeal [procedure] in the first 

instance.” We note that in her supplemental brief, Cook appears to focus her 

stare-decisis analysis exclusively on Schoicket instead of on the earlier out-oftime-appeal precedent discussed above in Division 2 (a), and as a result does 

not offer her views on that precedent.
42

precedent] for its specific holding . . . and ha[d] not cited [the 

precedent] for any proposition at all in the past 60 years”) (emphasis 

in original).

Rarely, if ever, is the age of a precedent itself dispositive in a 

stare decisis analysis, and that is so here. See Southall v. State, 300 

Ga. 462, 468 (796 SE2d 261) (2017) (“[W]ithout more, that we have 

been wrong for many years is no reason to persist in the error.”) 

(citation and punctuation omitted). As discussed above in Division 

2 (a), the first actual precedent approving and applying the trial 

court out-of-time appeal procedure was Rowland, a 27-year-old case 

that we can hardly call “ancient.” Willis, 304 Ga. at 705 (citation 

and punctuation omitted). We have overruled statutory precedents 

of comparable, and sometimes older, ages. See, e.g., Duke, 306 Ga. 

at 184 (overruling 19-year-old precedent); City of Cumming v. 

Flowers, 300 Ga. 820, 832 (846 SE2d 48) (2020) (overruling 21-yearold precedent); Woodard, 296 Ga. at 812 (overruling 24-year-old 

precedent); State v. Burns, 306 Ga. 117, 123-124 (829 SE2d 367) 

(2019) (overruling 30-year-old precedent); Jackson, 287 Ga. at 659 
43

(overruling precedent that was “nearly three decades old”); Southall, 

300 Ga. at 468 (overruling 45-year-old precedent). We thus move to 

an examination of the broader reliance interests related to our trial 

court out-of-time-appeal precedents. 

When it comes to reliance interests, we have traditionally 

looked to whether the precedent at issue affects property or contract 

issues, and whether it establishes a substantive right; reliance 

interests are at their apex when they involve these types of interests. 

See, e.g., Savage v. State, 297 Ga. 627, 641-642 (774 SE2d 624) 

(2015) (“[S]tare decisis is especially important where judicial 

decisions create substantial reliance interests, as is more common 

with rulings involving contract and property rights.”) (citing cases). 

See also Olevik, 302 Ga. at 245 (“Substantial reliance interests are 

an important consideration for precedents involving contract and 

property rights, ‘where parties may have acted in conformance with 

existing legal rules in order to conduct transactions.’”) (citation 

omitted). Compare Jackson, 287 Ga. at 658 (explaining that the 

precedent at issue “affects no property or contract issues and 
44

establishes no substantive rights, so it creates no meaningful 

reliance interests”); Nalls, 304 Ga. at 180 (same). 

No such reliance interests are at stake here. We have 

repeatedly held that precedents—like the ones at issue here—

relating to procedures, including post-conviction procedures, create 

no substantive rights “in which anyone has a significant reliance 

interest.” Duke, 306 Ga. at 184-185 (precedent that “disregard[ed]” 

the statutory requirement for a certificate of immediate review 

before pursuing an interlocutory appeal did “not involve substantial 

reliance interests”). See also, e.g., Pounds, 309 Ga. at 382 (“[T]he 

issues involved are ones of appellate procedure, not . . . substantive 

rights in which anyone has a significant reliance interest.”) (citation 

and punctuation omitted); Willis, 304 Ga. at 706 (“As to the reliance 

issues potentially at stake, we note that the holdings in [our prior 

precedents] are procedural in nature and establish no substantive 

rights.”) (citation and punctuation omitted). Moreover, Rowland 

and its progeny did not establish any substantive rights in the first 

instance; they merely created an alternative procedural vehicle—
45

albeit a legally unauthorized one—for alleging the violation of a 

preexisting constitutional right (i.e., the effective assistance of 

counsel in filing a timely appeal as of right) and for obtaining a 

constitutionally necessary remedy if that right was violated.13 

Eliminating this alternate procedure would not extinguish a

convicted defendant’s ability to vindicate an alleged violation of her 

right to appeal due to constitutionally ineffective assistance of 

counsel, because the General Assembly long ago established a

habeas corpus procedure through which a convicted defendant can 

vindicate that very same constitutional claim.14 

 13 While GACDL concedes that “[p]rocedural rules do not normally create 

the kinds of reliance interests that stare decisis is concerned with because they 

affect no property or contract issues and establish no substantive rights,” 

(citations and punctuation omitted), it nonetheless points to a number of nontraditional concerns that it characterizes as reliance interests in the trial court 

out-of-time-appeal system. Those include “the incalculable value of the time 

lost waiting for a habeas court that is a stranger to the parties . . . to decide in 

a formal proceeding what a sentencing court can decide promptly on a motion” 

and the fact that defendants are not required to pay a filing fee for out-of-time 

appeals, whereas petitions for habeas corpus require filing fees and other costs. 

Compare OCGA § 15-6-77 (h), (k) with OCGA § 24-13-25. These and other 

factors are considered below in Division 3 (d) as part of our workability 

analysis.

14 To the extent GACDL postulates that, if the trial court out-of-time 

appeal vehicle were eliminated, some number of convicted defendants would 
46

We have also considered, however, a different type of reliance 

interest in some of our stare decisis analyses: the “entrenchment” of 

the precedent in the legal system. See, e.g., Frett, 309 Ga. at 60

(noting that the precedent at issue had not “become deeply 

entrenched in our jurisprudence”). See also Williams v. Harvey, 311 

Ga. 439, 451 (858 SE2d 479) (2021) (the holdings in prior precedents 

are “neither ancient nor entrenched within our judicial system”) 

(citation and punctuation omitted); Flowers, 300 Ga. at 831-832 (the 

prior precedent is “neither ancient nor entrenched”) (citation and 

punctuation omitted). Whether entrenchment constitutes a species 

of reliance or whether it is instead a separate factor in the stare 

decisis analysis is of no moment; we see no reason we cannot 

consider it here.

The dissent seizes on the concept of entrenchment and focuses 

almost myopically on it in its stare decisis analysis. Characterizing

 

lose their appeal as of right and might also have missed the relevant statute of 

limitation in habeas corpus, we note that the General Assembly can grant 

relief from the habeas statute of limitation if it deems any such potential result 

unjust.
47

entrenchment “in a narrow sense [as whether a precedent’s] 

relevant holding has been applied frequently,” and more broadly as 

“potential disruption to the legal system that might be caused by 

suddenly jettisoning a particular precedent,” it contends that “the 

motion for out-of-time appeal has become deeply entrenched.” 

GACDL shares the disruption concern, characterizing the trial court 

out-of-time appeal procedure as “one thread in Georgia’s Gordian 

knot of criminal-appellate and post-conviction practice.” 

We cannot say, however, that entrenchment of the trial court 

out-of-time-appeal procedure in Georgia weighs so heavily in the 

stare decisis analysis that we should retain our erroneous 

precedents. First, the actual number of precedents on the trial court 

out-of-time appeal procedure in Georgia—i.e., cases holding that a 

motion for an out-of-time appeal in the trial court was a proper 

procedure such that the case needs to be overruled if the trial court 

out-of-time appeal procedure were eliminated—are few. That 

limited universe of cases includes Rowland—our first real precedent 

addressing and approving the trial court out-of-time appeal 
48

procedure—and a handful of progeny cases, a fact the dissent glosses 

over by shifting focus to the 14 cases that were docketed in our Court 

last year after a trial court granted a motion for out-of-time appeal.15 

The dissent points to these cases, which reference trial court grants 

of motions for out-of-time-appeals in the first footnote of this Court’s

opinions recounting the procedural history of murder cases, and 

contends that our trial court out-of-time appeal precedent “has 

become deeply entrenched” because “it is regularly applied in a 

significant number of cases.”

We acknowledge the value—at least in a case like this one—in 

 15 We have identified only five cases—the last one decided more than 15 

years ago—that appear expressly to endorse the filing of an out-of-time appeal 

in the trial court and thus constitute precedent for purposes of a stare decisis 

analysis. See Carr v. State, 281 Ga. 43, 43-44 (635 SE2d 767) (2006) 

(extensively quoting Rowland and directing Carr that, “should she wish to 

appeal her convictions, she must file a request for an out-of-time appeal in the 

trial court”); Cody v. State, 277 Ga. 553, 554 (592 SE2d 419) (2004) (stating 

that Cody “has the option of applying for an out-of-time appeal in the court of 

conviction”); Fulton v. State, 277 Ga. 126 (587 SE2d 20) (2003) (“Fulton may 

seek an out-of-time appeal in the trial court.”); Wicks v. State, 277 Ga. 121, 122 

(587 SE2d 21) (2003) (“If Wicks wishes to pursue appellate relief, he can seek 

an out-of-time appeal in the trial court.”), disapproved on other grounds, 

Pounds, 309 Ga. at 378 n.4; Porter v. State, 271 Ga. 498, 500 (521 SE2d 566) 

(1999) (“To obtain an out-of-time appeal, Porter must apply for that relief in 

the trial court . . . . ”), disapproved on other grounds, Pounds, 309 Ga. at 378 

n.4.
49

identifying potential disruption to the legal system that might result 

if a precedent is overruled. We are not unmindful of the practice 

that has built up around convicted defendants seeking motions for 

out-of-time appeal in trial courts and of appellate courts applying 

Rowland and its progeny to decide cases following trial-court rulings 

on motions for out-of-time appeal. As GACDL casts it, “the criminal 

legal system has arranged itself around the availability of the direct, 

out-of-time remedy.” But we are not willing to weight this type of 

entrenchment over all other factors, because the regular application 

of a procedural precedent—even in a “significant number of cases,” 

as the dissent suggests—is not dispositive of a stare decisis analysis, 

particularly where another procedure—the one we have explained

is exclusive—is available. 

Nor is the second entrenchment-related point the dissent 

makes dispositive: that when our out-of-time appeal precedents are

applied, “it often makes a substantial difference,” because when 

such a motion is granted “it permits an appeal that would otherwise 

be barred without the years-long delay of habeas.” To be sure, when 
50

a trial court grants an out-of-time appeal, it allows a defendant to 

proceed with an appeal that would otherwise be time-barred. But 

that does not support the dissent’s entrenchment argument, because 

a convicted defendant may obtain the same result by filing a petition 

in a habeas court using the statutorily authorized procedure. That 

procedure—habeas corpus—exists now and will continue to exist 

even if we eliminate the trial court out-of-time appeal procedure. 

The dissent’s stronger claim—which we address more fully 

below as part of our workability analysis—is that motions for out-oftime appeals in trial courts are quicker and more efficient than 

habeas corpus proceedings. That may well be true in many cases. 

But habeas corpus is the procedure the General Assembly has 

established to provide the remedy for the unconstitutional 

deprivation of the right to appeal; this Court has determined that 

“habeas corpus is the exclusive post-appeal procedure available to a 

criminal defendant who asserts the denial of a constitutional right,” 

Mitchum, 306 Ga. at 883 (citation and punctuation omitted; 

emphasis in original); and even if the alternate procedural vehicle 
51

we created may result in requests for out-of-time appeals being 

decided faster and more efficiently, that alone is not a reason to 

retain that procedure, even if it has become “entrenched.”

(d) Workability

That brings us to workability. As the dissent notes and as we 

discuss below, some aspects of the trial court out-of-time appeal 

procedure we created may be more workable or even preferable (at 

least in the view of some Justices) to the statutorily authorized 

habeas corpus process. But there is a fundamental—and in our 

view, insurmountable—workability problem with our precedents: 

there is no end in sight to our Court being asked to fill in the details 

of the trial court out-of-time appeal procedure we created. See 

Harper, 286 Ga. at 217-218 (overruling prior precedent in part 

because of workability problems stemming from the lack of “rules or 

precedents guiding individuals in the filing of, or courts in their 

consideration of,” the post-appeal procedure that our Court had 

created in a prior case).

Administration of the Habeas Corpus Act, by contrast, does not 
52

require judges to establish such rules in the first instance; the 

General Assembly has already established them by statute. On that 

point, the Habeas Corpus Act—the General Assembly’s chosen 

procedure for remedying alleged violations of convicted defendants’ 

constitutional rights, including claims that a right to appeal was 

frustrated because of a constitutional violation—establishes that 

the superior court in the county of the defendant’s detention has 

“exclusive jurisdiction” over the defendant’s habeas petition, OCGA 

§ 9-14-43; contains requirements for what petitions must include, 

OCGA § 9-14-44, and how they must be served, OCGA § 9-14-45;

establishes deadlines for answering a petition, OCGA § 9-14-47; and 

lays out how hearings must operate, OCGA § 9-14-48, what the 

habeas court must put in writing to support its judgment, OCGA § 9-

14-49, and how that judgment must be appealed, OCGA § 9-14-52. 

The Act imposes definite time limits within which petitions must be 

brought: it requires a defendant to challenge a felony conviction not 

involving a death sentence within four years of “the conclusion of 

direct review or the expiration of the time for seeking such review” 
53

and to challenge a misdemeanor within one year, OCGA § 9-14-42 

(c)—statutory limitations periods that are not subject to equitable 

tolling, see Stubbs v. Hall, 308 Ga. 354, 369 (840 SE2d 407) (2020). 

It provides for a statutory defense of laches, OCGA § 9-14-48 (e), and 

contains a bar on successive habeas petitions, OCGA § 9-14-51. 

Moreover, the Civil Practice Act OCGA § 9-11-1 et seq., generally 

applies to habeas corpus proceedings. See OCGA § 9-11-81; Mitchell 

v. Forrester, 247 Ga. 622, 623 (278 SE2d 368) (1981) (“[T]he CPA

now applies to habeas corpus applications.”).16

Yet no corresponding requirements for motions for out-of-time 

appeals in trial courts are clearly applicable—at least not from the 

common law, statutes, or court rules, which do not establish or 

recognize such motions. The only rules that govern the operation of

 16 Unlike in habeas proceedings, where the Civil Practice Act applies, we 

have not clearly answered what, if any, statutory authority related to court 

proceedings applies to trial court out-of-time appeal proceedings. To the 

contrary, we have stated that courts and parties should look to the Habeas 

Corpus Act for guidance—at least with respect to issues related to laches—but 

even then we have not directly applied the Act’s statutory limitations to the 

trial court out-of-time appeal procedure. See Collier, 307 Ga. at 374-375. This 

unanswered question makes it more likely that legal questions about the 

limitations of the trial court out-of-time appeal procedure will be raised again 

in our Court. 
54

the trial court out-of-time appeal procedure are rules that trial 

judges formulate and appellate judges approve, modify, or reject if 

challenged. Every time that is done, judges again overstep their 

authority and re-engage in a policy-making exercise that is typically 

reserved for legislators. Faced with questions like whether to try to 

mirror the requirements of the Habeas Corpus Act, follow 

requirements for other types of motions filed in trial courts, or make 

up rules we think are the best as a matter of policy, we have over 

the years created or endorsed a hodge-podge of guidelines for the 

trial court out-of-time appeal procedure on a case-by-case basis. See, 

e.g., Collier, 307 Ga. at 373 (noting that “the body of case law 

governing procedures applicable to . . . motions [for out-of-time 

appeal in trial courts] is far less developed than” the Habeas Corpus 

Act and habeas case law and that “we have . . . addressed defenses 

to such motions [for out-of-time appeal] as the State has raised 

them”). See also id. at 373 n.12 (citing prior cases applying the 

doctrines of res judicata and collateral estoppel to motions for out-
55

of-time appeal in the trial court).17 And the reality is that we have 

little idea what rules trial courts are applying, or if they are applying 

whatever rules they have established with any degree of uniformity 

or consistency. As Justice Ellington has observed, “by allowing outof-time appeals, we have, repeatedly, already substituted our policy 

preferences for those of the General Assembly and allowed 

defendants to skirt the legislatively-established habeas process.” 

Schoicket, 312 Ga. at 839 (Ellington, J., dissenting in part). 

For example, because no deadline or statute of limitation 

expressly restricts a convicted defendant’s ability to file a motion for 

out-of-time appeal in a trial court, in Collier the State argued that 

the Court should “abolish the practice of allowing defendants to file 

a motion for an out-of-time appeal in the trial court” to prevent 

defendants from filing motions for out-of-time appeal years or 

 17 Unless we, as a matter of policy, import all of the requirements of the 

Habeas Corpus Act into the trial court out-of-time appeal procedure, that 

procedure may allow a convicted defendant who seeks relief through a motion 

for out-of-time appeal in a trial court to avail herself of a completely different—

and potentially less stringent—set of requirements than if she filed the very 

same claim as part of a petition for habeas corpus.
56

decades after their convictions, when the State may have lost the 

evidence needed to defend against the motion. 307 Ga. at 369. The 

Collier majority noted that “determining whether the out-of-time 

appeal process in the trial court should be maintained would involve 

a complex stare decisis analysis” and that those “issues ha[d] not 

been fully briefed” in that case. Id. at 376. The majority instead 

concluded that a laches-like “prejudicial delay” defense could 

potentially provide the State with a defense against unreasonably 

delayed motions for out-of-time appeal filed in trial courts. Id. at 

370 (“[W]e hold that the State may raise the defense of ‘prejudicial 

delay’ to out-of-time appeal motions filed in the trial court.”). See 

also id. at 374 (“When a defendant files a motion for an out-of-time 

appeal in the trial court, the State may argue that the defendant’s 

delay in doing so has unduly prejudiced the State’s ability to respond 

to the motion.”); id. at 375 (“[T]he trial court may consider the time 

periods, factors, and other criteria set out in the most analogous 

limitation and laches provisions—those found in the Habeas Corpus 

Act”). Four Justices expressed doubt about that conclusion, 
57

however, and concurred in the judgment of the prejudicial-delay 

portion of the majority opinion only “to the extent that it correctly 

observe[d] that none of our cases have held that the State cannot 

assert a defense of prejudicial delay.” Id. at 381 (Peterson, J., 

concurring specially, joined by Blackwell, Boggs, and Bethel, JJ.). 

How exactly a prejudicial-delay defense would work in these cases

is an open question, and the answer is anyone’s guess.18 What is 

more certain is that this Court ultimately (and repeatedly) will have 

to make up the details if we retain the trial court out-of-time appeal 

procedure, which requires these sorts of questions to be answered by 

judges.

The questions did not stop after Collier. If anything, Collier 

begged even more questions, which Schoicket illustrates: the 

defendant in that case asked us to decide whether we would 

 18 Justice Peterson goes a step further today in his dissent by suggesting

that, because the General Assembly added a laches defense to the Habeas 

Corpus Act in 2004 and did nothing to modify motions for out-of-time appeal 

in trial courts, laches does not apply to our judicially created procedure—

meaning that a motion for out-of-time appeal may be filed decades after a final 

conviction. And Justice Ellington joins the dissent, even though he authored 

Collier. 
58

“logically extend” our holding in Collier, as Justice Peterson’s special 

concurrence had hinted we might. In Schoicket, we were forced to

grapple with whether a granted out-of-time appeal not only 

authorizes a defendant to file what would otherwise be an untimely 

appeal, but also to file an untimely motion to withdraw a guilty 

plea—which would also allow the defendant to expand the record

that she could use to assert previously unraised claims. See 

Schoicket, 312 Ga. at 825; Collier, 307 Ga. at 380 (Peterson, J.,

concurring specially).

We had held in Collier that whether a defendant “seeks an outof-time appeal from a final judgment of conviction entered following 

a trial or following a guilty plea” did not matter, and we overruled 

cases that held otherwise. See Collier, 307 Ga. at 366-367.

Nevertheless, in Schoicket we decided that the very same 

distinction—whether a defendant was adjudicated guilty by trial 

versus by entering a plea—actually did matter, because we did not 

allow the defendant in that case, who had been granted an out-oftime appeal after judgment of conviction was entered on her guilty 
59

plea, the relief she sought: a motion to withdraw her guilty plea. See 

Schoicket, 312 Ga. at 832; see also Boone, ___ Ga. at ___ (relying on 

Schoicket to hold that “a grant of an out-of-time appeal would not 

entitle Boone to pursue an otherwise-untimely motion to withdraw 

a guilty plea”). Even though we had acknowledged that “permitting 

such a motion would be a logical extension of our precedent that 

invented certain post-conviction remedies,” and that the Court of 

Appeals had done just that in Dawson v. State, 302 Ga. App. 842, 

843 (691 SE2d 886) (2010), and Sosa v. State, 352 Ga. App. 637, 639 

& n.1 (835 SE2d 695) (2019), we rejected the extension of our 

precedent and overruled Dawson and Sosa. See Schoicket, 312 Ga. 

at 833 n.9. We concluded that “we should not have invented those 

remedies in the first place” and “decline[d] to invent additional 

remedies that might further complicate our post-conviction 

jurisprudence.” Id. at 826. See also id. at 837, 839 (Ellington, J., 

dissenting in part) (arguing that there is no “principled reason to 

deny guilty-plea defendants access to the procedural tool we created” 

and contending that we “should ensure that access to the 
60

misbegotten procedure is provided in an even-handed manner” by 

allowing defendants who are granted an out-of-time appeal to 

withdraw their guilty pleas); Collier, 307 Ga. at 380 (Peterson, J., 

concurring specially) (noting that allowing defendants to move to 

withdraw guilty pleas after being granted out-of-time appeals would 

“appear to be merely a logical extension” of our out-of-time appeal 

precedents). 

These examples of the issues we have faced point to another

aspect of this workability problem: the lines we have drawn in our 

trial court out-of-time appeal precedents are often based on 

considerations of policy rather than law. The line we drew in 

Schoicket—where we acknowledged that the defendant’s requested 

extension of our out-of-time appeal precedents was logical and 

anticipated by the Court, but nonetheless rejected it to avoid 

“further complicat[ing] our post-conviction jurisprudence,” 312 Ga. 

at 826—amply illustrates this concern. Indeed, we have already 

admitted that “our inventions” in this area “have never purported to 

be even-handed.” Id. at 832 (emphasizing that “a motion for out-of-
61

time appeal can be granted only if one particular kind of ineffective 

assistance of counsel claim succeeds, and all sorts of other 

ineffectiveness claims not raised on direct appeal can be brought 

only in habeas”). The longer our trial court out-of-time appeal 

precedents persist—and the more these issues are highlighted by

cases like Collier, Kelly, and Schoicket—the more likely it is that we 

will have to continue to draw lines to define the procedure’s 

boundaries, including to “retreat from ‘broad statements’” we have 

made in some of our precedents and to “avoid dispensing 

unwarranted windfalls.” Schoicket, 312 Ga. at 825 (acknowledging 

that “following our decision in Collier, we have retreated from broad 

statements about the effect of a granted out-of-time appeal in order 

to avoid dispensing unwarranted windfalls”).

In this regard, we have already identified two additional issues

that arise in the trial court out-of-time appeal procedure—how 

claims of ineffective assistance of counsel may be presented, and 

when defendants are legally entitled to appointed counsel—that will 

likely require this Court at some point to provide answers about 
62

apparent conflicts between existing precedent and practices that 

appear to be common in the trial court out-of-time appeal procedure. 

As the dissent points out, in some cases in which a convicted 

defendant’s lawyer misses an appellate filing deadline inadvertently 

and notices the oversight not long thereafter, it appears that the 

lawyer files a motion for out-of-time appeal in the trial court 

admitting his error, the State concedes that the motion should be 

granted, and the trial court grants the motion. See, e.g., Waller v. 

State, 311 Ga. 517, 518 n.1 (858 SE2d 683) (2021) (“Appellant filed 

a motion for out-of-time appeal through trial counsel.”); Swan v. 

State, 276 Ga. App. 827, 829 (625 SE2d 97) (2005) (“Trial counsel 

filed a motion for an out-of-time appeal . . . .”); Brown v. State, 199 

Ga. App. 856, 856 (406 SE2d 516) (1991) (“The record shows 

defendant’s trial counsel filed a motion for out-of-time appeal . . . .”). 

Asserting a claim of ineffective assistance in that way may be a 

relatively fast and efficient means of getting the appellate process 

moving again. But that process appears to conflict with this Court’s 

precedent holding that a lawyer cannot assert his own ineffective 
63

assistance. See, e.g., Hood v. State, 282 Ga. 462, 463 (651 SE2d 88) 

(2007) (“Because a lawyer may not ethically present a claim that 

he/she provided a client with ineffective assistance of counsel, a 

claim of ineffective assistance of trial counsel cannot be pursued 

unless trial counsel is no longer representing the convicted 

defendant.”) (citation omitted; emphasis supplied). See also 

Garland v. State, 283 Ga. 201, 203 & n.2 (657 SE2d 842) (2008) 

(explaining that “[c]ounsel prosecuting an ineffective assistance 

claim must be free to operate independently of the attorney whose 

performance is in question” and that “Georgia law has thus 

decisively rejected the position . . . that trial counsel is not only 

competent to evaluate the ineffectiveness of his/her own 

performance, but is ‘actually in a superior position to do so’”); 

Delevan v. State, 345 Ga. App. 46, 49-51 (811 SE2d 71) (2018)

(vacating the trial court’s denial of defendant’s motion for an out-oftime appeal filed by the lawyer who was allegedly ineffective, 

concluding that “[t]he Supreme Court of Georgia has repeatedly held 

that an attorney may not ethically present a claim that [he] provided 
64

a client with ineffective assistance of counsel. It necessarily follows 

that a claim of ineffective assistance of counsel may not be pursued 

unless the counsel at issue is no longer representing the defendant 

and, instead, the defendant either is represented by conflict-free 

counsel or represents himself pro se.”) (citation and punctuation 

omitted).

And there’s more. When questions arise about the propriety of 

counsel raising an ineffective assistance claim, the trial court can 

attempt to ensure that a new lawyer—one who does not have a 

conflict of interest that precludes him from asserting his own 

ineffectiveness—is appointed to represent the defendant. See, e.g., 

Garland, 283 Ga. at 203. But that creates yet another issue in the 

out-of-time appeal context, because our precedent squarely holds 

that a motion for out-of-time appeal is a proceeding as to which a 

defendant is not entitled to the appointment of counsel. See, e.g., 

Davis v. State, 310 Ga. 547, 548 (852 SE2d 517) (2020) (‘“[B]ecause 

a motion for an out-of-time appeal cannot be construed as part of a 

criminal defendant’s first appeal of right, [the defendant] was not 
65

entitled to the assistance of appointed counsel.’”) (quoting Pierce v. 

State, 289 Ga. 893, 894 (717 SE2d 202) (2011)).19 And that leads to 

the question of whether trial courts and public defenders abiding by 

our precedent on a convicted defendant’s right to counsel should 

appoint new counsel to handle motions for out-of-time appeal 

asserting that the defendant was deprived of an appeal of right by 

her prior counsel’s ineffective assistance.20 Despite this tension,

motions for out-of-time appeal appear to be granted routinely in this 

situation. See, e.g., Clark v. State, 309 Ga. 566, 566 n.1 (847 SE2d 

160) (2020) (“Clark filed a motion for an out-of-time appeal through 

 19 As we discuss below, a defendant also has no right to appointed counsel 

in a habeas corpus proceeding. We add that in describing the current state of 

the law, we do not mean to suggest that, as a matter of policy, the General 

Assembly cannot or should not provide funding for lawyers to be appointed for 

indigent defendants to pursue apparent violations of those defendants’ 

constitutional rights, even when such funding is not constitutionally required. 

But policy decisions such as those must be left to the Legislative Branch, and 

not made by judges.

20 Likewise, if a new lawyer is appointed to take over a convicted 

defendant’s appeal as of right and discovers that previous counsel missed the 

jurisdictional deadline to file a motion for new trial or a notice of appeal, the 

public defender arguably can decline to extend representation on the basis that 

the defendant is not entitled to it, and the trial court would have a basis to 

uphold that decision. 
66

new counsel, which the trial court granted.”); Kidd v. State, 304 Ga. 

543, 543 n.1 (820 SE2d 46) (2018) (“Kidd filed another motion for an 

out-of-time appeal, this time with appointed counsel.”).

As with the other examples of unanswered questions 

mentioned above, we do not know with certainty what the resolution 

of these issues would be if presented properly in a case before this 

Court. But it seems likely that at some point, based on our 

precedent, a trial court will dismiss a motion for out-of-time appeal 

in which a lawyer asserts his own ineffectiveness, or uphold a public 

defender’s decision not to appoint new counsel for a convicted 

defendant whose trial counsel was constitutionally ineffective in 

failing to file a notice of appeal; the defendant will appeal that 

ruling; and this Court will have to decide what to do. We could apply 

our precedent as it would seem to apply in other contexts, and 

thereby undermine many of the benefits of the trial court out-oftime-appeal procedure on which the dissent relies heavily, or we 

could endorse additional deviations from precedent to maintain 

what we consider to be preferable policy results for the procedure we 
67

created. What this Court cannot do, as long as the motion for outof-time appeal procedure is maintained, is avoid making decisions 

about these sorts of issues. 

The entire Court agrees that we erred, and that we overstepped

our limited constitutional role, by creating the trial court out-of-time 

appeal procedure. But we cannot simply wash our hands of that 

error; the need to determine the details of the procedure we created 

will require us (and trial judges) to perpetually overstep our judicial 

bounds. That makes our precedent unworkable, as this Court has 

repeatedly held in similar situations. See Duke, 306 Ga. at 186 n.4 

(that the precedent at issue was “in need of refining only emphasizes 

the unworkable nature of [the precedent] as it was decided”); 

Harper, 286 Ga. at 217-218 (prior precedent that created the motion 

to vacate a criminal conviction, which was “a new post-appeal 

procedure for challenging a criminal conviction, . . . proved 

unworkable inasmuch as Georgia law is silent as to the procedural 

framework and rules applicable to this newly created remedy,” 

especially given that “[u]nlike the myriad rules governing previously 
68

recognized and statutorily created procedures for challenging a 

criminal conviction, there are no rules or precedents guiding 

individuals in the filing of, or courts in their consideration of, postappeal motions to vacate a criminal conviction”).

The dissent pushes back, contending that we should not focus 

only on the workability of the precedents we are considering 

overruling, and that we should instead compare the workability of 

the current, erroneous precedents with the workability of the 

alternative: here, the statutory habeas scheme that will function as 

the exclusive procedure for convicted defendants to assert the denial 

of constitutional rights if the trial court out-of-time appeal procedure 

is eliminated.21

 21 We note that, although this Court has never held that this type of 

comparison is a required part of our stare decisis analysis, such a comparison 

is not necessarily inconsistent with our usual stare decisis analysis; if we 

examine the workability of one precedent, we at least implicitly comment on 

the workability of its alternatives. And we have even drawn explicit 

comparisons in some prior stare-decisis analyses. See, e.g., State v. Burns, 306 

Ga. 117, 124 (829 SE2d 367) (2019) (“[W]e cannot say that any ‘workability’ of 

[the existing precedent] is sufficient to preserve the precedent. Although [that 

precedent’s] bright-line test is not ‘unworkable,’ neither is the alternative—

applying the familiar and usual rules of evidence, which trial courts routinely 

do every day.”); Flowers, 300 Ga. at 833 (“[A]lthough the local-ordinance 
69

In that vein, the dissent compares the current out-of-time 

appeal system to a world in which only habeas exists and argues 

that the current out-of-time appeal system is more workable. These 

arguments, many of which GACDL also highlights, can be organized 

into three primary claims: (1) that the current out-of-time appeal 

system is more efficient for resolving a criminal defendant’s claim 

that ineffective assistance of trial counsel resulted in a loss of the 

defendant’s appeal as of right; (2) it is more likely under the current 

system that an indigent defendant will have access to counsel when 

filing the defendant’s claim of ineffective assistance of counsel; and 

(3) eliminating the out-of-time appeal procedure will result in a 

significant shift in workload among government entities—especially 

with respect to district attorney offices, the Attorney General’s 

office, public defenders, and judges. None of those arguments is 

 

requirement is not unworkable, it is not as workable as the correct rule.”); 

Lejeune, 296 Ga. at 298 (“[T]he usual rule in habeas cases—that the petitioner 

bears the burden of proof—is more workable than the rule of Purvis and its 

progeny.”); Ga. Dept. of Nat. Resources v. Ctr. for a Sustainable Coast, 294 Ga. 

593, 602 (755 SE2d 184) (2014) (“[A] bright line rule that only the Constitution 

itself or a specific waiver by the General Assembly can abrogate sovereign

immunity is more workable than IBM v. Evans’ scheme allowing judicially 

created exceptions.”).
70

availing.

With respect to its first set of arguments, the dissent contends 

that the out-of-time appeal procedure is more efficient because,

among other reasons, the same judge who presided over the 

defendant’s trial can decide the motion for out-of-time appeal, which 

in turn avoids having to transfer the record between a trial court 

and a habeas court and also reduces travel costs for everyone 

involved. These practical observations may be correct, but the 

differences between the Habeas Corpus Act and our out-of-time 

appeal procedural vehicle reflect policy choices the General 

Assembly made in enacting the former. To the extent the Habeas 

Corpus Act can or should be improved to make post-conviction 

proceedings more efficient, or a trial court out-of-time appeal process 

for certain cases should be established, the General Assembly can 

make those changes legislatively. See Duke, 306 Ga. at 186

(recognizing that if “the General Assembly determines that the 

established framework does not adequately safeguard the interests 

of litigants in particular classes of cases, it is for that body to change 
71

it”). Cf. OCGA § 9-14-43 (amending the Habeas Corpus Act in 2004 

to require petitioners not in custody or in federal or foreign custody

to file habeas petitions in the superior court of the county in which 

they were convicted).

The dissent similarly argues that the trial court out-of-time 

appeal procedure is faster than habeas—particularly when counsel 

has missed a jurisdictional filing deadline by only a few days or 

weeks, the parties involved in the case are willing to consent to an 

out-of-time appeal, and the defendant is able to proceed to her 

motion for new trial or appeal as of right expeditiously.22 That, too, 

may be true, although—as discussed above—it appears to be 

inconsistent with our precedent on counsel raising her own alleged 

ineffectiveness. But putting aside the anomaly of trial courts 

permitting counsel to raise their own ineffective assistance against 

 22 We note that, to the extent that the filing deadline is missed by a short 

period of time and the term of court in which the judgment of conviction was 

entered still has not expired, the trial court may set aside and reenter the 

judgment to allow a timely post-trial motion or appeal to be filed. See Gray, 

310 Ga. at 262. The availability of this historical practice, which is rooted in 

the common law, should alleviate some of the dissent’s concern about 

ineffective counsel missing jurisdictional deadlines by just a few days or weeks.
72

themselves, there are also many instances in which out-of-time 

appeals are sought in trial courts not to quickly correct oversights, 

but rather to appeal years- or decades-old convictions. See, e.g., 

Collier, 307 Ga. at 374 (“[S]ome of our out-of-time appeal cases have 

involved long delays after conviction.”); id. at 374 n.14 (citing two 

cases where the lapses of time were 15 and 26 years); Sims v. State, 

312 Ga. 303, 304 (862 SE2d 507) (2021) (“[A]lmost seven years later, 

Sims filed a pro se motion for an out-of-time appeal.”); Harvey, 312 

Ga. at 265 (“Around 15 years later, Harvey filed a motion for an outof-time appeal through new counsel.”); Davis, 310 Ga. at 548 (“Davis 

filed a pro se motion for an out-of-time appeal” over 20 years after 

his conviction). These cases not only ignore the statutory time limits 

the Habeas Corpus Act imposes on the ability to seek the same relief 

in habeas—a legislative choice the General Assembly made to 

promote the finality of convictions; they also raise additional 

logistical concerns, such as the availability of witnesses and 

evidence to resolve the ineffective-assistance-of-counsel claim 

underlying the motion. See, e.g., Schoicket, 312 Ga. at 837 
73

(Ellington, J., dissenting in part) (acknowledging the State’s delayrelated concerns such as “lost or destroyed records and dead or 

forgetful witnesses” in the context of motions to withdraw guilty 

pleas being filed pursuant to granted out-of-time appeals); Collier, 

307 Ga. at 375 (“[E]liminating post-conviction delay before appeal is 

an important interest in our criminal justice system.”).

The dissent also contends that defendants often have more 

“access to counsel” in the trial court out-of-time appeal procedure 

than they do in habeas. But that concern is largely undermined by 

the dissent’s acknowledgement that indigent defendants do not have 

a right to counsel in either scenario. See Davis, 310 Ga. at 548 

(“‘Because a motion for an out-of-time appeal cannot be construed as 

part of a criminal defendant’s first appeal of right, defendant was 

not entitled to the assistance of appointed counsel.’”) (quoting Pierce 

v. State, 289 Ga. 893, 894 (717 SE2d 202) (2011)) (punctuation 

omitted); Gibson v. Turpin, 270 Ga. 855, 857 (513 SE2d 186) (1999)

(“It is well settled that there is no federal or state constitutional 
74

right to appointed counsel in Georgia habeas corpus proceedings.”).23 

Indeed, the dissent’s contention that indigent defendants, “as a 

practical matter,” have counsel more frequently in the trial court 

out-of-time appeal procedure than in habeas “when a motion is filed 

to correct a missed deadline” seems to be a veiled reference to the 

issues we have discussed above: counsel asserting claims of 

ineffective assistance against themselves or being appointed in 

proceedings where the defendants have no entitlement to appointed 

counsel. These practices may be challenged now that they have been 

highlighted.

Finally, the dissent expresses concern that eliminating the 

alternative trial court out-of-time appeal procedure and relying 

 23 We share the dissent’s concern that, if motions for out-of-time appeals 

are eliminated in trial courts, some pro se defendants—or even attorneys who 

are familiar with the trial court out-of-time appeal procedure—may not 

initially appreciate the risk of waivers and bars to successive habeas claims 

they may face if they file a habeas petition that complains only of the ineffective 

assistance of counsel that resulted in the defendant’s frustrated appeal, rather 

than all of the defendant’s constitutional claims. But the requirements of 

habeas corpus are well-established, both in statute and in case law 

interpreting it, so it rings hollow to suggest that being required to use the 

exclusive statutory remedy that the General Assembly established decades ago 

is somehow a trap for the unwary.
75

exclusively on habeas corpus would necessitate a significant shift in 

resources within the criminal justice system. The dissent notes, for 

example, that motions for out-of-time appeals that are typically 

heard by trial courts and handled by attorneys from district attorney 

offices would instead be heard by habeas courts and handled by 

attorneys from the Attorney General’s office, and projects that those 

changes will result in staffing and workload (and thus financial)

implications. 

We are certainly mindful of the resources required for 

government entities—including courts—to get their work done. But 

resource considerations such as these must be directed to the 

General Assembly, whose constitutional duty includes 

appropriating funds for the operations of our State’s government. 

See Ga. Const. of 1983, Art. III, Sec. IX, Par. II, III. See also 

Schoicket, 312 Ga. at 839 (Ellington, J., dissenting in part) (“The 

General Assembly is fully capable of resolving how to allocate funds 

to make the system work. Indeed, the General Assembly would be 

freed from having to appropriate, in addition to funds to make the 
76

post-conviction system work as it intended when it adopted the 

Habeas Corpus Act over 50 years ago, additional substantial funds 

to make our judicially-created parallel system work.”) (emphasis in 

original). Moreover, representatives of two of the primary 

stakeholders who would be affected by any anticipated shift in 

workload—the Attorney General and the District Attorney—have 

asked this Court to overrule our trial court out-of-time appeal 

precedents, specifically arguing that those precedents are

unworkable. We should credit the views of the constitutional 

officers who have responsibility for both the trial court and habeas 

out-of-time appeal processes over our own views of their abilities to 

discharge their duties in a world where motions for out-of-time 

appeals in trial courts do not exist.

The dissent greatly underestimates the unworkability of the 

current trial court out-of-time-appeal procedure while overvaluing 

its own speculation about the disruption to the legal system that will 

ensue if motions for out-of-time appeals in trial courts are 

eliminated. The workability factor therefore weighs in favor of 
77

overturning our trial court out-of-time appeal precedents, and for 

doing so now.

(e) We Overrule our Precedents and Eliminate the Judicially

Created Motion for Out-of-Time Appeal Procedure in Trial 

Courts.

In light of the analysis conducted above, we conclude that stare 

decisis does not preclude overruling our precedents that created or 

endorsed the trial court out-of-time appeal procedural vehicle. 

Accordingly, we overrule Rowland v. State, 264 Ga. 872, 874-875 

(452 SE2d 756) (1995), and any other decisions that approved the 

judicially created motion for out-of-time appeal in trial courts, to the 

extent that they endorsed this procedure. We also disapprove King 

v. State, 233 Ga. 630, 630 (212 SE2d 807) (1975), Furgerson v. State, 

234 Ga. 594, 595 (216 SE2d 845) (1975), and any other decisions that 

have allowed out-of-time appeal claims to be litigated in trial courts 

without addressing the propriety of that procedure. We note that in 

overruling and disapproving these cases, we do not undo what has 

been done with respect to out-of-time appeals that already have been 

granted where the ensuing appeal has concluded. And that 
78

important point leads us to an analysis of how today’s holding 

applies to this case and others going forward.

4. Our Holding Applies to this Case, Cases in the Appellate 

“Pipeline,” and Future Cases.

Amicus curiae GACDL contends that if this Court concludes it 

must eliminate out-of-time appeal motions in trial courts, it should 

announce its intention to do so “well ahead of the change” and “set 

a date certain after which no motion for out-of-time appeal may be 

filed.” In short, GACDL asks us to apply any new rule we announce 

prospectively.24 But we decline that proposal because prospective 

application would run afoul of the “pipeline” approach Georgia has 

long followed for the application of new rules of criminal procedure

to criminal cases that are pending on direct review or not yet final. 

In Taylor v. State, 262 Ga. 584 (422 SE2d 430) (1992), this 

Court held that

 24 To support its request, GACDL cites only Davenport v. State, 309 Ga. 

385, 399 (846 SE2d 83) (2020). But our decision in Davenport pertained to this 

Court’s decision to change a court practice—sua sponte review of evidentiary 

sufficiency in murder appeals—and did not endorse or otherwise authorize 

limiting this Court’s holdings in criminal cases to prospective application. See 

id.
79

[i]n order to ensure that similarly situated defendants are 

treated similarly and to maintain the integrity of the 

judicial process while still providing finality, . . . it [is] . . .

appropriate to adopt the “pipeline” approach, that is, that 

a new [state] rule of criminal procedure . . . will be applied 

to all cases then on direct review or not yet final. 

Id. at 586.25 We have consistently recognized or followed this 

holding regardless of whether the judicial decision setting forth a 

new state rule of criminal procedure was based on a statute or on 

decisional law. See, e.g., Mobley v. State, 265 Ga. 292, 294 (455 SE2d 

61) (1995); Smith v. State, 268 Ga. 196, 201 (486 SE2d 819) (1997); 

Smith v. State, 268 Ga. 860, 861 & n.10 (494 SE2d 322) (1998); 

Harris v. State, 273 Ga. 608, 610 (543 SE2d 716) (2001); Green v. 

State, 279 Ga. 455, 456 (614 SE2d 751) (2005); Stubbs, 308 Ga. at

 25 We note that a different rule applies to cases in habeas corpus. See 

Harris, 273 Ga. at 610 (clarifying that a new state rule of criminal procedure

“w[ould] not be applied to convictions challenged on habeas corpus”); Chatman 

v. Brown, 291 Ga. 785, 788 (733 SE2d 712) (2012); Turpin v. Todd, 268 Ga. 

820, 830-831 (493 SE2d 900) (1997). We also note that the Georgia rule 

regarding retroactive application of new holdings in civil cases is less settled. 

Compare Findley v. Findley, 280 Ga. 454, 460 (629 SE2d 222) (2006) (“[W]e 

decline to adopt a rule of universal retroactivity in all civil cases.”) with Atlanta 

Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731, 739-744 (691 SE2d 218) 

(2010) (Nahmias, J., concurring specially, joined by Carley, P.J., and Hines, 

J.).
80

362 n.11.26 

Neither Cook nor GACDL argues that we should overrule 

Taylor and its progeny, let alone engages in a stare decisis analysis 

of that precedent. Indeed, neither Cook nor GACDL argues that our 

holding in this case is somehow not the sort of judicial decision that 

is governed by Taylor or offers a compelling reason to reconsider 

Taylor or its progeny. See Collins v. State, 312 Ga. 727, 735 (864 

SE2d 85) (2021) (appellant “does not offer any compelling reason to 

abandon precedent that has been a settled part of our law for 35 

years, is straightforward in its application, and [is] not obviously 

unsound”). We therefore decline the invitation to apply today’s 

holding only prospectively. Instead, pending and future motions for 

 26 A recent case provides another good example: in Seals v. State, we held 

that a trial court’s dead-docketing a count of an indictment left that count 

“pending in the court below” for purposes of OCGA § 5-6-34 (a) (1), thus 

preventing an appeal of the case unless the defendant followed interlocutory 

appeal procedures. See Seals v. State, 311 Ga. 739, 739 (860 SE2d 419) (2021). 

That holding was applied to Seals’s case, and we immediately began applying 

it to dismiss criminal appeals that were filed in our Court when one or more of 

the counts in the case had been dead-docketed—even when the notice of appeal 

in the case was filed before Seals was decided. See, e.g., Favors v. State, 

S21A0328 (June 29, 2021); Scott v. State, S21A0507 (June 29, 2021); Drennon 

v. State, S21A1139 (Aug. 6, 2021).
81

out-of-time appeals in trial courts should be dismissed, and trial 

court orders that have decided such motions on the merits—like the 

one in this case—should be vacated if direct review of the case 

remains pending or if the case is otherwise not final. See Brooks v. 

State, 301 Ga. 748, 752 (804 SE2d 1) (2017) (“Because the trial court 

decided the merits of a motion it lacked jurisdiction to decide, we 

vacate the trial court’s order and remand with instructions to 

dismiss.”).

5. Conclusion

We are faced with two choices in this case: We can overrule our 

trial court out-of-time appeal precedents, return to the habeas 

corpus process the General Assembly established for seeking postconviction relief of this sort, and—to the extent that procedure is 

problematic—allow the General Assembly to fix any flaws by 

statute. Or we can retain our erroneous trial court out-of-time 

appeal precedents, maintain an alternative procedure for obtaining 

post-conviction relief for this one type of constitutional claim, and 

perpetuate our roles of judges-as-legislators who must continue to
82

establish by judicial opinion the rules for the procedural vehicle we 

created. In light of the analysis conducted above, we choose the 

former.

We hold 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 and Furgerson, approved in Rowland, 

and followed in other cases, is not a legally cognizable vehicle for a 

convicted defendant to seek relief from alleged constitutional 

violations. Our holding applies to this case and to all cases that are 

currently on direct review or otherwise not yet final. 

Accordingly, the trial court was without jurisdiction to decide 

Cook’s motion for out-of-time appeal in this case, and “because the 

trial court’s order plainly shows that it denied” the motion “on the 

merits,” Bonner v. State, 310 Ga. 426, 428 (851 SE2d 578) (2020),

the trial court’s order must be vacated and the case remanded to the 

trial court with direction that the motion be dismissed. See 

McDaniel v. State, 311 Ga. 367, 373 (857 SE2d 479) (2021) (“[W]hen 

a trial court is presented with a motion that it lacks jurisdiction to 
83

decide and denies the motion solely on the merits, we vacate the trial 

court’s order and remand with instructions to dismiss the motion.”);

Brooks, 301 Ga. at 752. Cook’s remedy, if any, lies in habeas corpus.

Judgment vacated and case remanded with direction. All the 

Justices concur, except for Boggs, P.J., who concurs specially in 

Division 3 (c) and (d), and Peterson, Bethel, and Ellington, JJ., who 

dissent.
84

S21A1270. COOK v. THE STATE.

LAGRUA, Justice, concurring. 

I write separately to emphasize that this matter presents a 

challenging question of law with a fairly straightforward answer. 

The question is whether a criminal defendant, who has alleged that 

she has been deprived of an appeal of right due to ineffective 

assistance of counsel, may seek an out-of-time appeal as her remedy 

in the trial court instead of pursuing her remedy through habeas. 

The answer is no.

The majority opinion and the dissent agree that this Court’s 

creation of the out-of-time appeal procedural vehicle in the trial 

court was unsupported by sound reasoning or relevant authority.27

Where we part ways is on the question of whether stare decisis 

 27 In addition, as noted by the majority opinion:

An unusual aspect of this case is that neither the State nor any of 

the amici curiae—which represent the views of both prosecutors 

(PAC) and criminal defense lawyers (GACDL)—contends that our 

judicial decisions creating or endorsing the trial court out-of-time 

appeal procedural vehicle are supported by sound reasoning or 

relevant authority.
85

favors the retention of the out-of-time appeal procedure in the trial 

court, and I concur with the majority opinion that it does not.

Under the doctrine of stare decisis, “courts generally stand by 

their prior decisions, because it promotes the evenhanded, 

predictable, and consistent development of legal principles, fosters 

reliance on judicial decisions, and contributes to the actual and 

perceived integrity of the judicial process.” Pounds v. State, 309 Ga. 

376, 382 (3) (846 SE2d 48) (2020) (citation and punctuation omitted). 

“Nevertheless, when governing decisions are unworkable or are 

badly reasoned, this Court has never felt constrained to follow 

precedent. Stare decisis is not an inexorable command; rather, it is 

a principle of policy and not a mechanical formula of adherence to 

the latest decision.” Woodard v. State, 296 Ga. 803, 812 (3) (b) (771 

SE2d 362) (2015) (citation and punctuation omitted). As explained 

in the majority opinion, the stare decisis factors include: (1) the 

soundness of our precedents, which we all agree are entirely 

unsound; (2) the age of the precedents, which are not especially old; 

(3) the reliance interests involved, including that our precedents 
86

have established a procedural right rather than a substantive one; 

and (4) the workability of the procedure, including that the 

parameters of the procedure need continual judicial revision. I agree 

with the majority opinion that these factors do not weigh in favor of 

keeping a procedure that we “created out of whole cloth” and which 

helped lead to “a tangled mess of post-conviction jurisprudence.” 

Collier v. State, 307 Ga. 363, 379 (834 SE2d 769) (2019) (Peterson, 

J., concurring specially). 

As this Court initially held correctly in Neal v. State, 232 Ga. 

96 (205 SE2d 284) (1974), in the Habeas Corpus Act of 1967, the 

General Assembly established habeas corpus as the procedure for a 

criminal defendant who alleges that she was deprived of her right to 

appeal because of her counsel’s alleged ineffective assistance. And 

“it is not the job of judges to usurp that [legislative] power . . . by 

rewriting laws enacted by the people’s democratically elected 

representatives.” Barrow v. Raffensperger, 308 Ga. 660, 692 (842 

SE2d 884) (2020) (Melton, C. J., concurring). Accordingly, I agree 

with the majority opinion that Cook’s remedy, if any, lies in habeas 
87

corpus. If the General Assembly takes issue with the exclusiveness 

of the procedure it has created, it is incumbent upon the legislature

to fashion a new procedure.

I am authorized to state that Justice McMillian joins in this 

concurrence. 
88

BOGGS, Presiding Justice, concurring specially in part.

I agree with most of what is said in the majority opinion and 

concur fully in the judgment and in Divisions 1, 2, 3 (a), (b), and (e), 

4, and 5. I do not necessarily agree with all that is said in Division 3

(c) and 3 (d), however, so I concur specially in those parts of the 

opinion.
89

S21A1270. COOK v. THE STATE.

 PETERSON, Justice, dissenting.

The majority today overrules decades of nonconstitutional 

precedent recognizing a trial court power that is entrenched within 

our system, it does so without a clear sense of the likely 

consequences, and it does so while overreading some of our 

precedents in a way that would prohibit the General Assembly from 

fixing at least some adverse consequences. If stare decisis means 

anything, it should preserve longstanding and oft-applied 

nonconstitutional precedent at least until we know the effect of 

overruling. I respectfully dissent from the majority’s refusal to wait 

for that day.

As an initial matter, I should note that I agree with much of 

the majority’s opinion. I agree that our approval of the motion for 

out-of-time appeal happened without analysis or the articulation of 

a proper legal basis. I don’t dispute that we held in Neal v. State, 

232 Ga. 96 (205 SE2d 284) (1974), that the habeas statute provided 

the exclusive remedy for claims that a right to appeal was frustrated 
90

by ineffective assistance of counsel.28 I agree that the motion for outof-time appeal has contributed to the complexities of our tangled 

mess of a post-conviction litigation process. And I agree that we did 

something we should not have nearly 50 years ago when we ignored 

our decision in Neal in acknowledging a stand-alone motion for outof-time appeal. Indeed, I’ve already said as much. See Schoicket v. 

State, 312 Ga. 825, 825 (865 SE2d 170) (2021); Collier v. State, 307 

Ga. 363, 379-82 (834 SE2d 769) (2019) (Peterson, J., concurring 

specially). 

But concluding that our decades-old precedent was misguided 

is not sufficient to reject it. Given the importance of stare decisis, I 

 28 Whether Neal was rightly decided is a closer question. Neal did no 

statutory construction in support of its holding that the habeas corpus statute 

precludes a motion for out-of-time appeal in the trial court, and the habeas 

statute itself contains no text supporting such a proposition. The closest the 

statute gets is a provision that states that “this article provides the exclusive 

procedure for seeking a writ of habeas corpus for persons whose liberty is being 

restrained by virtue of a sentence imposed against them by a state court of 

record,” OCGA § 9-14-41 (emphasis added). Neal did not identify the similar 

text in effect at the time as supporting its conclusion, and a motion for out-oftime appeal does not seek a writ of habeas corpus. And the only other cases the 

majority cites for this proposition, Smith and Mitchum, hold only that habeas 

is the exclusive remedy for post-appeal ineffectiveness claims. Of course, the 

whole point of an out-of-time appeal motion is that the defendant has not yet 

had their appeal.
91

cannot join the majority in ripping the motion for out-of-time appeal 

out of our post-conviction system’s “tangled mess.” Collier, 307 Ga. 

at 379) (Peterson, J., concurring specially). In a footnote in 

Schoicket, I observed that such a step might be appropriate. See 312 

Ga. at 830 (1) n.6. But the extensive briefing and argument in this 

case has convinced me otherwise. The motion for out-of-time appeal 

is more entrenched in our legal system than I had realized, and the 

policy implications of reversing course now are beyond our Court’s 

ability even to understand fully today, much less solve. The majority 

dismisses my discussion of those implications as speculative. I 

agree; neither I nor the majority has a full sense of the effect of 

reversing course, and so speculation is the best we can do. But 

respectfully, the majority’s response does not help its case; we 

shouldn’t overrule decades of precedent without more than 

speculation about the effects of such a move. In my view, stare 

decisis exists for cases like this one, and I would retain our incorrect 

precedent as the lesser of two evils.

1. Stare decisis is a question of judicial policy, not an 
92

objective formula.

Whether stare decisis should preserve a legally incorrect 

precedent is a question of policy, not of law. See State v. Jackson, 

287 Ga. 646, 658 (5) (697 SE2d 757) (2010) (“[S]tare decisis is not an 

inexorable command, nor a mechanical formula of adherence to the 

latest decision. Stare decisis is instead a principle of policy.” (citation 

and punctuation omitted)). That policy question weighs the value of 

having an issue decided against the value of deciding it right. Almost 

always, questions of policy are for the other two branches of 

government. But stare decisis is that rare kind of policy that — since 

the very beginning of our Court — we have consistently understood 

to be within the judicial power to apply. See, e.g., Leary v. Durham, 

4 Ga. 593, 601 (1848) (observing in case involving property rights 

that “where a rule of law has been firmly established for half a 

century[] at least, though originally, perhaps, on mistaken or 

erroneous principles, and no greater evil is to be apprehended from 

an adherence to it, than may be expected from a departure from it, 

that stare decisis ought to be our motto”). 
93

Questions of policy often leave more room for disagreement 

than questions of law. There are only so many possible meanings 

legal text can have, and one meaning is almost always objectively 

more correct than the other possibilities. But there are many 

different ways to approach the kinds of policy questions that stare 

decisis presents. And so it is here. That the members of this Court 

disagree over whether to retain our prior precedent creating motions 

for out-of-time appeals does not mean that some of us are applying 

the law unfaithfully. It simply means that, in our reasoned exercise 

of prudential judgment, we arrive at different conclusions.

Understanding stare decisis as a matter of judicial policy, our 

primary precedent setting the framework for deciding questions of 

stare decisis does not limit us to an exhaustive list of factors to 

consider. Rather, we have framed this as a balancing of 

considerations in which we consider factors “such as” — not limited 

to — “the age of the precedent, the reliance interests at stake, the 

workability of the decision, and, most importantly, the soundness of 

its reasoning.” Jackson, 287 Ga. at 658 (5). The United States 
94

Supreme Court precedent on which our framework is based is 

consistent with that understanding. See Montejo v. Louisiana, 556 

U.S. 778, 792-97 (129 SCt 2079, 173 LE2d 955) (2009) (noting 

relevant factors “include” age, reliance interests, soundness of 

precedent, and workability before weighing the “marginal benefits” 

of the prior rule “against its substantial costs” to conclude that it 

“does not pay its way”) (citation and punctuation omitted)).

Apart from the four factors identified in Jackson, we have 

identified other considerations that are quite germane to the 

question before us in this case. We have made clear that stare decisis 

applies with greater force to statutory precedents than to 

constitutional precedents, as it is more difficult for the legislature to 

undo a constitutional decision. Compare, e.g., Abernathy v. City of 

Albany, 269 Ga. 88, 90 (495 SE2d 13) (1998) (“Even those who regard 

‘stare decisis’ with something less than enthusiasm recognize that 

the principle has even greater weight where the precedent relates to 

interpretation of a statute.” (citation and punctuation omitted)), 

with Olevik v. State, 302 Ga. 228, 245 (2) (c) (iv) (806 SE2d 505) 
95

(2017) (“[S]tare decisis carries less weight when our prior precedent 

involved the interpretation of the Constitution, which is more 

difficult than statutory interpretation for the legislative process to 

correct. This doesn’t mean that we disregard stare decisis 

altogether, though; what it actually means is that the first stare 

decisis factor (soundness of reasoning) becomes even more critical. 

The more wrong a prior precedent got the Constitution, the less 

room there is for the other factors to preserve it.” (citation omitted)).

Another important consideration in determining whether to 

retain prior precedent is the extent to which it has become 

entrenched in the legal system — meaning, in a narrow sense, that 

its relevant holding has been applied frequently. See, e.g., Frett v. 

State Farm Employee Workers’ Compensation, 309 Ga. 44, 60 (3) (c) 

(844 SE2d 749) (2020) (considering the extent to which a precedent 

is “entrenched” in our jurisprudence by examining how often and 

how recently it has been cited, particularly for its relevant holdings). 

Although this concept of entrenchment can include the age of the 

precedent, the extent to which others have relied on it, and its 
96

workability, it is not limited to those categories. Understanding 

entrenchment more broadly, it is important that we consider 

potential disruption to the legal system that might be caused by 

suddenly jettisoning a particular precedent. The majority criticizes 

me for focusing too much on this idea. But there’s little else 

warranting much attention. We don’t particularly disagree on the 

correctness of the creation of the motion for out-of-time appeal. And 

the other Jackson factors either aren’t terribly meaningful (age),29

or are encompassed within my treatment of entrenchment (reliance 

and workability).

2. In my view, stare decisis counsels that we retain our 

 29 Indeed, once we’ve determined that a decision was unsound, the other 

Jackson factors never seem to be particularly meaningful. Since 2010, our 

Court has tended to recite the Jackson “four-factor test” consistently, and just 

as consistently overrule precedent after woodenly ticking through those 

factors. See, e.g., Frett v. State Farm Employee Workers’ Comp., 309 Ga. 44, 63-

64 (844 SE2d 749) (2020) (Peterson, J., dissenting) (noting that every time an 

opinion explicitly applied the Jackson test even as to statutory precedent, we 

overruled the precedent). The majority responds by reiterating the Frett

majority’s response: it’s “unsurprising” that the Court does extensive analysis 

of stare decisis “mostly” in cases where the Court overrules precedent. The 

word “mostly” is critical to that argument, and it is wrong. The Court doesn’t 

do stare decisis analysis “mostly” in cases overruling precedent, it does stare 

decisis analysis exclusively in cases overruling precedent. The majority does 

not identify a single case in which we have concluded a precedent of ours was 

unsound, but nevertheless determined that stare decisis warranted retaining 

that precedent.
97

current rule allowing trial courts to consider motions for 

out-of-time appeal.

Here, we are dealing with the sort of nonconstitutional 

precedent to which stare decisis applies more strongly. The 

precedent at issue here is of the sort that the General Assembly 

might easily alter or eliminate, and thus eliminating that precedent 

ourselves should give us greater pause. Although the majority 

opinion posits that stare decisis applies with less force here because 

Rowland v. State, 264 Ga. 872 (452 SE2d 756) (1995), and its preCollier progeny ignored the relevant statutory text, I’ve already 

explained that Neal did not engage with the text of the habeas 

statute, either.

As noted above, I don’t dispute Neal’s holding. But the majority 

opinion’s focus on the soundness of the reasoning (or lack thereof) in 

the decisions that subsequently deviated from that holding, while 

important, is only the beginning of the application of stare decisis. 

“[S]tare decisis does not even begin to apply until we doubt the 

correctness of a previous precedent.” Frett, 309 Ga. at 65 (Peterson, 

J., dissenting). If we believe a precedent to be correct, we simply 
98

apply it and stop there. But if we doubt the correctness of the 

precedent, we do not simply overrule that precedent without 

consideration of other factors. “[I]f stare decisis is to mean 

something, we need more than that to overrule a statutory 

precedent.” Id.

(a) The motion for out-of-time appeal plays a significant 

role in our legal system.

Turning to those other considerations, they include the extent 

to which the precedent has become entrenched in our legal system. 

And here, nearly 50 years after it first appeared in our case law, the 

motion for out-of-time appeal has become deeply entrenched, at least 

in the senses that (1) it is regularly applied in a significant number 

of cases and (2) when it is applied, it often makes a substantial 

difference — when the motion is granted, it permits an appeal that 

would otherwise be barred without the years-long delay of habeas. 

Thus, although I suggested otherwise in Schoicket, the briefing and 

argument in this case has convinced me that jettisoning our 

precedent here could be enormously disruptive. 

Undoubtedly, our precedent allowing out-of-time appeals 
99

affects a significant number of cases. This Court entertained appeals 

of murder convictions enabled by granted motions for out-of-time 

appeals at least 14 times last year alone.30 A similar number for the 

Court of Appeals is not readily ascertainable; that court does not 

systematically report the procedural history of each criminal case it 

decides in the same way that we do in our murder cases (or, for that 

matter, publish all of its opinions as we do). But if a similar 

proportion of their criminal appeals arise from granted motions for 

out-of-time appeal (as seems reasonable to suppose), the true annual 

 30 It is our practice in direct murder appeals to include the case’s 

procedural history in our opinion’s first footnote. At least 14 such footnotes in 

2021 indicated a granted motion for out-of-time appeal. See Williams v. State, 

312 Ga. 386, 386 n.1 (863 SE2d 44) (2021); Baker v. State, 312 Ga. 363, 363 n.1 

(863 SE2d 55) (2021); Walker v. State, 312 Ga. 332, 332 n.1 (862 SE2d 542) 

(2021); Thompson v. State, 312 Ga. 254, 254 n.1 (862 SE2d 317) (2021); Walker 

v. State, 312 Ga. 232, 232 n.1 (862 SE2d 285) (2021); Williams v. State, 312 Ga. 

195, 195 n.1 (862 SE2d 108) (2021); Sullivan v. State, 311 Ga. 835, 835 n.1 (860 

SE2d 576) (2021); Holmes v. State, 311 Ga. 698, 698 n.1 (859 SE2d 475) (2021); 

Rogers v. State, 311 Ga. 634, 634 n.1 (859 SE2d 92) (2021); Felts v. State, 311 

Ga. 547, 547 n.1 (858 SE2d 708) (2021); Waller v. State, 311 Ga. 517, 518 n.1 

(858 SE2d 683) (2021); Abbott v. State, 311 Ga. 478, 478 n.1 (858 SE2d 696) 

(2021); Thomas v. State, 311 Ga. 280, 280 n.1 (857 SE2d 223) (2021); Kirkland 

v. State, 310 Ga. 738, 738 n.1 (854 SE2d 508) (2021). We do not generally 

include such a footnote in other criminal cases, and so this list of 14 may be 

underinclusive for 2021. 
100

number of such appeals may well be between 50 and 100 per year,31

and even more in years of heavier caseloads.32 And even denied 

motions for out-of-time appeal (which may not always themselves be 

appealed) would first have resulted in full habeas proceedings under 

the Court’s holding today.

The majority opinion first responds by dismissing the 

significance of these cases on the basis that they are not “precedent” 

for stare decisis purposes because they did not decide whether the 

existence of a motion for out-of-time appeal was appropriate. But 

that misunderstands the nature of precedent for these purposes. At 

least by the time of our 1995 decision in Rowland, our precedent 

definitively established that motions for out-of-time appeal are 

 31 During 2021, we disposed of 304 direct appeals. All of our murder 

appeals would have been contained within that number and typically make up 

a substantial majority of our direct appeals; this suggests that we perhaps 

disposed of 200 to 250 murder appeals during 2021. During the same period, 

the Court of Appeals disposed of 804 criminal appeals.

32 And this number does not even include the dozens of unpublished 

orders we have issued over the years dismissing appeals for untimeliness and 

citing Rowland for the proposition that the appellant may be able to file a 

motion for out-of-time appeal if the untimeliness was a result of counsel’s 

ineffective assistance.
101

proper. The 14 cases from last year in which our opinions noted that 

motions had been granted thus represent faithful application of that 

precedent and thus are precedent themselves for the purpose of 

considering the extent of the entrenchment of the precedent in 

question today.33

(b) Shifting all out-of-time appeals to habeas will have 

significant negative effects.

The majority’s argument that the long delays of habeas are not 

meaningful because some motions for out-of-time appeal are filed 

years or decades later is unavailing. Long-belated motions are a 

problem (although, as the majority would presumably agree, not one 

beyond the power of the General Assembly to end). But they seem

relatively rare; the majority cites only a handful. Most of the motions 

that the majority consigns to the often years-long delays of habeas 

are far more frequently filed shortly after deadlines are missed. In 

the vast majority of the 14 cases we considered last year from the 

 33 The application of a case’s well-settled holding does not require citing 

that case or discussing its analysis. At the very least, every case post-Rowland

that has granted or denied on the merits a motion for out-of-time appeal has 

applied Rowland’s holding, whether or not it cites it.
102

grant of a motion for out-of-time appeal, the motion was filed less 

than one year after the notice of appeal was due — indeed, often 

considerably less than that, indicating that the issue was one of 

attorney oversight rather than an attempt to attack an old 

conviction. In one case, the notice of appeal had been filed a mere six 

days late. See Abbott v. State, 311 Ga. 478, 478 n.1 (858 SE2d 696) 

(2021). In another, the issue was the trial court’s failure to formally 

vacate an initial order denying a motion for new trial in ruling on a 

second amended motion. See Walker v. State, 312 Ga. 332, 332 n.1 

(862 SE2d 542) (2021).

Particularly in those sorts of cases, where the only issue is 

whether counsel failed to file timely, allowing post-conviction 

proceedings to be resolved by granting a motion for out-of-time 

appeal in the trial court is much more efficient than requiring a 

convicted defendant to turn to the much lengthier habeas process. 

Granting a motion for out-of-time appeal allows the claims to be 

resolved promptly by the judge who presided over the trial. It avoids 

the need for an inmate to grapple with the procedural hurdles of 
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filing a habeas petition, avoids the need to transfer records between 

jurisdictions, and reduces travel costs for lawyers and prisoners.

And the speed of this process is particularly important when this 

Court — as a matter of policy — has sought to prevent delays in the 

resolution of post-conviction proceedings. See Owens v. State, 303 

Ga. 254, 258-60 (4) (811 SE2d 420) (2018) (directing the Council of 

Superior Court Judges to propose a rule to reduce post-conviction 

delays). Although the majority says that a convicted defendant can 

obtain the same result by filing in habeas, a grant of relief after 

years of additional litigation is not obviously the same as a grant of 

relief that is secured promptly.

The majority responds that the strictures of habeas “reflect 

policy choices the General Assembly made.” But some of the most 

important strictures were not in place when we created the out-oftime appeal vehicle. It was not until 2004 that the General Assembly 

imposed a limitations period for seeking habeas corpus relief from 
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felony convictions. See Ga. L. 2004, p. 917-918, § 1.34 And it was only 

that same year that the General Assembly provided that laches may 

be a basis for dismissal. See id., § 3. We presume that the General 

Assembly was aware of the availability of motions for out-of-time 

appeal and chose not to apply limitations periods or laches to them 

when it enacted these modifications to habeas.35 See Grange Mutual 

Casualty Co. v. Woodard, 300 Ga. 848, 852 (2) (a) (797 SE2d 848) 

(2017) (“[A]ll statutes are presumed to be enacted by the legislature 

with full knowledge of the existing condition of the law and with 

reference to it.” (citation and punctuation omitted)).

 34 I thank the Georgia Association of Criminal Defense Lawyers for its 

excellent amicus brief bringing this point to my attention. That brief also 

suggests that a 1986 amendment to a Title 40 statute applied limitations to 

seeking habeas relief from certain traffic convictions. See Ga. L. 1986 p. 444, § 

1. The actual effect of the 1986 provision is not entirely clear, but even if it did 

create a limitation on habeas petitions, it did so only for certain traffic offenses.

35 The majority interprets this point as though I’m arguing that Collier

was wrongly decided in authorizing a possible defense of prejudicial delay. This 

dissent expresses no opinion on that point. I merely point out that the General 

Assembly apparently did not share the majority’s policy concerns when that 

body enacted a limitations period and laches for habeas and chose not to extend 

those provisions to motions for out-of-time appeal, which had existed for 

decades before the General Assembly’s 2004 legislation. Nothing in Collier held 

otherwise.
105

Another significant effect on the criminal justice system is the 

workload impact shifting all these cases to habeas would have, both 

in terms of shifting court and counsel, and in terms of likely 

resulting in fewer state concessions. The current process spreads the 

obligation for handling such matters across all of the state’s district 

attorneys and judges, rather than concentrating the burden on a few 

judges in counties with prisons and shifting all prosecutorial 

responsibilities to the Office of the Attorney General.36 During 2021, 

we had 174 certificates of probable cause filed in our Court, seeking 

to initiate an appeal from the denial of a habeas petition, which 

suggests that the total number of habeas petitions resolved by 

superior courts during that time frame is unlikely to have been 

much more than 200. If we were to add 50 to 100 additional habeas 

 36 Although this could eventually be rectified in part by the General 

Assembly’s reallocation of appropriations, this is easier said than done. For one 

thing, it’s doubtful that any particular district attorney would be relieved of 

enough such motions to warrant reducing staff. At the same time, 

concentrating all of the cases in the AG’s office as habeas petitions may well 

result in a substantial increase in hourly fees paid to special assistant 

attorneys general contracted to defend convictions against habeas petitions. 

This is particularly likely because habeas petitions generally require more 

litigation than a motion, such that the change worked by the Court today likely 

will result in more work, not just shifting the work to different personnel. 
106

petitions per year — as the majority today may well do, although we 

can’t be sure — that could represent an increase in habeas caseloads 

of 25 to 50 percent, while concentrating those cases among the 

relatively few superior court judges who sit in circuits with prisons. 

Although the majority argues that we should “credit” the 

assessment of the Attorney General and the District Attorney who 

have asked this Court to overrule its out-of-time appeal precedents, 

neither of those constitutional officers has addressed the question of 

resources in their briefs in this case. And the largest resource impact 

would be on a small group of trial court judges, who are scarcely able 

to weigh in.

Moreover, our precedent reveals anecdotally that the State 

often agrees that the trial court should grant a motion for out-oftime appeal, limiting the amount of litigation required to resolve 

such an issue. But it’s one thing for the trial prosecutor — familiar 

with the case and defense counsel — to agree that ineffective 

assistance likely occurred and should be remedied. It’s another thing 

altogether for the State’s habeas counsel — likely unfamiliar with 
107

the case, defense counsel, and the trial court — to do so; more 

meritorious motions would likely have to be litigated fully before 

relief could be granted. 

And finally, our prior approach often had the effect of affording

indigent defendants access to counsel for their motion for out-of-time 

appeal,37 something that will be — at best — less certain if we 

suddenly require inmates to turn to habeas. See Gibson v. Turpin, 

270 Ga. 855, 860-61 (1) (513 SE2d 186) (1999).38 Moreover, they 

won’t be able to bring only their claim regarding a frustrated appeal 

without seriously risking waiving all other habeas-eligible claims. 

 37 The majority responds that indigent defendants do not have a right to 

counsel for a motion for an out-of-time appeal. But although I agree that 

indigent defendants do not have a right of appointed counsel for such a motion, 

as a practical matter they often in fact have such counsel when a motion is 

filed to correct a missed deadline. The majority’s observation that a public 

defender can decline to represent a defendant who is not entitled to 

representation is not responsive to this point. 

38 I note that today’s step of entirely eliminating motions for out-of-time 

appeal as a procedure to remedy the frustration of a defendant’s right to appeal 

makes all the more relevant and timely Justice Ellington’s previous suggestion 

that the superior court rules be amended to ensure that plea colloquies more 

thoroughly inform defendants of their rights to withdraw their plea and appeal 

their conviction. See Schoicket, 312 Ga. at 839-40 (Ellington, J., dissenting in 

part); see also id. at 833 (1) n.10 (majority opinion noting that Justice 

Ellington’s “thoughtful suggestion” merited consideration).
108

See, e.g., Williamson v. State, 305 Ga. 889, 897 (4) (827 SE2d 857) 

(2019) (“Any claim of ineffectiveness of counsel must be made at the 

earliest practicable moment.”).39 And now they will likely need to do 

so pro se, without having had a hearing on a motion for new trial 

and without a right to access the record of their trial without first 

explaining why they need it. See Rutledge v. State, 309 Ga. 508 (847 

SE2d 143) (2020) (explaining that “after the time for appeal has 

expired there is no due process or equal protection right to a free 

copy of one’s court records absent a showing of necessity or 

justification” (citation and punctuation omitted)). The Court’s 

decision today puts a defendant whose attorney missed the deadline 

for filing a notice of appeal in a very difficult position.

(c) Neither lawyer ethical rules nor our decisions 

interpreting them are cause to abandon our 

precedent allowing motions for out-of-time appeals.

 39 On the other hand, the rule that ineffectiveness claims must be raised 

at the earliest practicable moment appears to be another rule that we have 

created without a basis in any statutory authority. See Smith v. State, 255 Ga. 

654, 655 (3) (341 SE2d 5) (1986) (“It is a requisite of a sound system of criminal 

justice, serving alike the proper ends of defendants and of the public, that any 

contention concerning the violation of the constitutional right of counsel should 

be made at the earliest practicable moment.”). Under the majority’s approach 

to stare decisis, the fate of that rule is uncertain as well.
109

The majority responds to much of this by arguing that our 

precedent appears to prohibit lawyers from asserting their own 

ineffectiveness. If that were true, it would give me pause. But the 

majority overreads our precedent. Our precedent makes clear that 

trial counsel cannot litigate contested ineffectiveness claims on a 

motion for new trial, on appeal, or on habeas. But it does not address 

the question of whether trial counsel may assert an uncontested 

ineffectiveness claim in a motion for out-of-time appeal in the trial 

court, which textual changes to the Georgia Rules of Professional 

Conduct (the “Rules”) following our only decision analyzing any Rule 

on this point strongly suggest is permissible. The majority’s broader 

reading is wrong and, if adopted as a holding in a future case, would 

tie the hands of the General Assembly in any later legislative effort 

to fix what the majority breaks today.

In Castell v. Kemp, 254 Ga. 556 (331 SE2d 528) (1985), we 

denied an application for interlocutory appeal from a trial court 

order disqualifying a lawyer. See id. at 558. The only analysis in the 

opinion was the trial court order, which we quoted in full without 
110

comment beyond denying the application. The trial court 

disqualified Bruce Harvey, who had served as trial counsel for the 

defendant, from representing the defendant in his habeas petition. 

The trial court cited one non-binding rule and two non-binding 

comments on the rules that applied at the time, each of which 

related to pitfalls of lawyers serving as witnesses.40 Different text of 

the old rule — again, in a non-binding comment — indicated that 

testifying on an uncontested issue would not be a problem: “It is not 

objectional for a lawyer who is a potential witness to be an advocate 

if it is unlikely that he will be called as a witness because his 

testimony would be merely cumulative or if his testimony will relate 

only to an uncontested issue.” Georgia Code of Professional 

Responsibility, EC 5-10 (1985). The trial court did not note this 

provision, no doubt because it was not at issue in the contested 

habeas case before it.

The trial court reasoned that the habeas petition sought to 

 40 The trial court also cited an Eleventh Circuit case for the proposition 

that “there may arise issues of potentially differing interests of the lawyer and 

his client,” but made no conclusions about any conflict-of-interest rules.
111

raise claims of ineffectiveness regarding Mr. Harvey, and that 

“virtually all the evidence of ineffective assistance of counsel is 

within counsel Harvey’s personal knowledge,” and “some evidence 

can only come from Mr. Harvey.” Castell, 254 Ga. at 558. The trial 

court noted its concern that the challenges to Mr. Harvey’s 

credibility his testimony would inevitably generate, and the 

necessity of cross-examination, posed threats to the integrity and 

reliability of the judicial process. See id. at 557-58. 

Sixteen years later, the State Bar proposed, and we approved, 

a wholesale set of new rules modeled after the ABA model rules. The 

old rule language quoted by the trial court largely no longer exists 

in our current rules (which were again significantly revised in 2018). 

The current binding rules on lawyers serving as witnesses generally 

prohibit it, but expressly allow it where “the testimony relates to an 

uncontested issue.” Ga. R. Prof. Conduct 3.7 (a) (1); see also Cmt. 3 

to Rule 3.7 (“Paragraph (a) (1) recognizes that if the testimony will 

be uncontested, the ambiguities in the dual role are purely 

theoretical.”).
112

It’s well-settled that “when statutory amendments [] 

materially alter text that this Court has previously interpreted, our 

pre-amendment precedent no longer binds lower courts to the extent 

the amendments change the meaning of the text.” State v. Stanford, 

312 Ga. 707, 710 n.3 (864 SE2d 448) (2021). And the Georgia Rules 

of Professional Conduct are, like all legal text, subject to this 

principle. To the extent that our quotation of the trial court’s order 

in Castell adopted the trial court’s reasoning as a holding, the 

material alteration of the rules made Castell obsolete, at least as to 

testimony that was uncontested. Deleting a non-binding comment, 

and replacing it with a binding rule — even if similar — is a 

substantive change to the meaning of the rules.

Over two decades after Castell and six years after the adoption 

of the new rules, we cited Castell as the sole authority for the 

proposition that “[b]ecause a lawyer may not ethically present a 

claim that he/she provided a client with ineffective assistance of 

counsel, a claim of ineffective assistance of trial counsel cannot be 

pursued unless trial counsel is no longer representing the convicted 
113

defendant.” Hood v. State, 282 Ga. 462, 463 (651 SE2d 88) (2007). 

We did so only for the proposition that the defendant had not waived 

ineffectiveness claims by failing to raise them before a belated pro 

se motion for new trial. See id. We then cited Hood in Garland v. 

State, 283 Ga. 201, 202 (657 SE2d 842) (2008), in support of our 

conclusion that a defendant was entitled to new counsel on appeal 

to pursue ineffectiveness claims. 

Hood and Garland are the only decisions of ours the majority 

cites41 for the proposition that trial counsel are ethically prohibited 

from raising a claim of ineffective assistance of counsel in a motion 

for out-of-time appeal, even when uncontested. They do not stand 

for that proposition. The only analysis on this point that any of these 

cases included was the quotation of the trial court’s order in Castell, 

which applied now-superseded rules regarding lawyers serving as 

witnesses.42 Now, the current rules generally prohibit lawyers from 

 41 The majority also cites a decision of our Court of Appeals. See Delevan 

v. State, 345 Ga. App. 46, 49-51 (811 SE2d 71) (2018). That case relies on the 

same authority already discussed and did not involve uncontested testimony.

42 We also have stated more broadly that an attorney cannot “reasonably 
114

serving as witnesses on contested points, precisely the context in 

which Castell and its progeny were decided. I have no quarrel with 

that holding. But there is no basis to extend their holdings to cases 

of uncontested testimony. The majority’s only response to all of this 

is not to cite Castell.

In short, neither the Rules nor our precedent interpreting them 

prohibit trial counsel from seeking an out-of-time appeal when the 

facts underlying the claim to which the lawyer would have to testify 

are uncontested (and which, if the trial lawyer is still counsel, 

naturally will be sought soon after the deadline has passed).

Allowing this kind of motion is the key value of the system that 

presently exists relative to the system that will exist following the 

majority’s opinion.

3. The majority’s workability concerns do not warrant 

overruling our precedent. 

 

be expected to assert or argue his own ineffectiveness on appeal[,]” particularly 

in the contexts of determining whether a defendant needs new, conflict-free 

counsel, see Garland, 283 Ga. at 203, and determining whether a claim of 

ineffective assistance has been waived, see White v. Kelso, 261 Ga. 32, 32 (401 

SE2d 733) (1991). But that is not the same as saying that a lawyer is 

categorically prohibited from asserting his own ineffectiveness in all 

circumstances.
115

Now, it’s important to note once again that considerations like 

these are not proper reasons to invent new avenues for relief that 

contravene statutes or otherwise misapply statutory law and 

equivalent legal principles in the first instance. But once we have 

done so — for decades, and in ways that are now entrenched in our 

legal system — these issues are appropriate to consider in 

determining whether to change course. 

The majority’s response to these concerns is to observe that the 

General Assembly could rectify any of these possible consequences 

of tossing aside the current system. And the majority takes the 

position that because we created the current situation, it is our 

responsibility to fix it. But this is always true when we’ve gotten a 

case wrong. The majority’s approach places a perpetual thumb on 

the scale in favor of overturning precedent, which is backwards. The 

idea that it doesn’t matter how much we break the legal system 

because the General Assembly can glue the pieces back together is 

simply not an argument compatible with stare decisis. Moreover, all 

of the problems with the existing system also can be remedied by 
116

actions of the General Assembly. Stare decisis means that when we 

have competing workability considerations on both sides of a choice 

whether to retain precedent, all of which can be addressed by the 

legislature, we put the thumb on the scale of retaining our current 

precedent. 

To be sure, our invention of the motion for out-of-time appeal 

has led to problems, only some of which are identified at length in 

my concurrence in Collier and our decision in Schoicket (and, of 

course, the majority’s decision today). But we have only a binary 

choice of retaining or overruling precedent; stare decisis allows us to 

keep a wrong precedent, not to improve on it. And this binary choice 

is a blunt instrument for solving the problems we have recognized. 

The General Assembly, on the other hand, has far more options. For 

instance, it might limit the filing of such motions to a six-month 

period after the deadline for the filing of a notice of appeal. Or it 

might tie the ability to file such a motion to the appointment of new 

counsel for appeal, requiring counsel to file the motion within, say, 

60 days of appointment.
117

The majority also contends that our current precedents are 

unworkable because they present an ongoing requirement that this 

Court “fill in the details of the trial court out-of-time appeal 

procedure we created,” requiring us to exercise legislative power. I 

disagree. There is no equivalent to the civil practice act for criminal 

cases. Many procedural vehicles are creatures of decisional law that

require, from time to time, our definition and refining. But we do not 

do so unaided; there already are many background rules — common 

law, statutory, and decisional — that apply to criminal proceedings 

generally, and may well apply to motions for out-of-time appeal. To 

the extent that we occasionally may be called upon to answer 

questions about the application of such background rules, that is 

what appellate courts do. Indeed, we did just that — unanimously 

— less than five months ago regarding a judicially created 

procedural mechanism in criminal cases. See Walker v. State, 312 

Ga. 640, 644 (2) (864 SE2d 398) (2021) (leaving undisturbed trial 

courts’ authority to dismiss criminal charges for want of prosecution 
118

and defining some of the contours of that authority).43 The majority 

focuses too narrowly on the effect this precedent has on us at the 

expense of a proper concern for the effect it has more broadly.

And to the extent that parties ask us to expand those 

procedures, such tinkering is not ours to do. We made clear in 

Schoicket our intention to cease inventing new procedural 

mechanisms in this area. See 312 Ga. at 832 (1). But for the reasons 

outlined above, neither should we jettison the mechanisms that have 

existed ever since we erroneously invented them decades ago. We 

should leave the next move — if any — for the General Assembly.

I am authorized to state that Justice Bethel and Justice 

Ellington join in this dissent. 

 43 In Walker, we observed that the State and its amici had pointed us to 

“no statute that purports to eliminate or limit this longstanding practice[.]” Id. 

at 644 (2). But that merely goes to the soundness of the original creation of the 

practice, not to the majority’s argument that being called upon to define the 

contours of a judicially created procedure is unworkable.