SUPREME COURT OF GEORGIA

November 2, 2022

The Honorable Supreme Court met pursuant to adjournment. 

The following order was passed:

Upon consideration, the Court has revised the deadline for 

motions for reconsideration in this matter. It is ordered that a 

motion for reconsideration, if any, including motions submitted via 

the Court’s electronic filing system, must be received in the 

Clerk’s Office by 2 p.m. on Wednesday, November 9, 2022.

SUPREME COURT OF THE STATE OF GEORGIA

Clerk’s Office, Atlanta

I certify that the above is a true extract from the

minutes of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto

affixed the day and year last above written.

, Clerk
1

SUPREME COURT OF GEORGIA

Case No. S22A0643

November 2, 2022

The Honorable Supreme Court met pursuant to adjournment. 

The following order was passed:

ROBERT KYLE DOUGHERTY v. THE STATE.

Appellant was convicted of felony murder, conspiracy to 

commit armed robbery, abandonment of a dead body, concealing the 

death of another, and possession of a firearm during the commission 

of a felony. On March 27, 2014, a disposition was entered that failed 

to resolve Count 4 of the indictment, which charged Appellant with 

armed robbery.

On March 31, 2014, Appellant filed pro se a motion for a new 

trial. In September 2014, Appellant’s new post-conviction counsel 

filed another motion for a new trial. After the trial court in January 

2019 entered an order purporting to deny the motion, Appellant, 

through counsel, filed a notice of appeal on February 22, 2019. On 

July 1, 2019, this Court dismissed Appellant’s appeal, Case No. 

S19A1281, as untimely. Specifically, Appellant’s notice of appeal 

was not filed within 30 days after March 27, 2014, the date that “the 

[trial] court entered a final disposition on [A]ppellant’s convictions 

for felony murder and other offenses[,]” according to our order;

Appellant filed his pro se motion for a new trial while he was “still 

represented by trial counsel,” making that motion “a legal nullity”

under White v. State, 302 Ga. 315 (806 SE2d 489) (2017); and the 

motion for a new trial filed by post-conviction counsel “was untimely 

and as such did not toll the time for filing an appeal.” See OCGA § 

5-6-38 (a) (“A notice of appeal shall be filed within 30 days after 
2

entry of the appealable decision or judgment complained of; but 

when a motion for new trial, a motion in arrest of judgment, or a 

motion for judgment notwithstanding the verdict has been filed, the 

notice shall be filed within 30 days after the entry of the order 

granting, overruling, or otherwise finally disposing of the motion.”).

Remittitur issued on August 7, 2019.

On February 20, 2020, the trial court entered a consent order 

granting Appellant an out-of-time appeal, and Appellant through 

counsel filed an “amended” motion for a new trial on March 2, 2020. 

The trial court entered an order purporting to deny that motion on 

November 18, 2020. Appellant, through counsel, filed a timely notice 

of appeal. On December 14, 2021, this Court dismissed Appellant’s 

second appeal, Case No. S22A0300, “because there [was] nothing in 

the record showing that Count 4 of the indictment was officially

resolved, either by entry of an order of nolle prosequi or otherwise,” 

such that “Appellant’s case remain[ed] pending in the trial court[,]” 

under Seals v. State, 311 Ga. 739 (860 SE2d 419) (2021). In that 

posture, we held, Appellant could only “obtain review of his 

convictions” by “follow[ing] the procedures for interlocutory 

appeal[.]” See OCGA § 5-6-34 (b).

On January 18, 2022, the trial court entered an order of nolle 

prosequi as to Count 4. Following entry of the nolle prosequi order, 

Appellant filed a notice of appeal on February 1, 2022, bringing the 

case again before this Court. The record shows that we have issued 

two irreconcilable orders in Appellant’s case. On the one hand, we 

dismissed Appellant’s first appeal in July 2019, premised in part on 

final judgment having been entered on Appellant’s convictions on 

March 27, 2014. On the other hand, in dismissing Appellant’s second 

appeal in December 2021 for failure to follow interlocutory appeal 

procedures, we explicitly held that a final judgment had not yet been 

entered on his convictions. Under our December 2021 order, final 

judgment was not entered on Appellant’s convictions until January 

18, 2022.
3

“[A]ny ruling” by this Court “in a case shall be binding in all 

subsequent proceedings in that case in the lower court and in the 

Supreme Court[.]” OCGA § 9-11-60 (h) (emphasis supplied). 

“Georgia’s appellate courts are required to adhere to the law of the 

case rule in all matters which they consider.” Hicks v. McGee, 289 

Ga. 573, 578 (2) (713 SE2d 841) (2011). See also Hollman v. State, 

305 Ga. 90, 90-91 (1) (823 SE2d 771) (2019) (“It is well-established 

that the law of the case doctrine” as set out in OCGA § 9-11-60 (h) 

in the Civil Practice Act “applies to holdings by appellate courts in 

criminal cases.”); Roulain v. Martin, 266 Ga. 353, 354 (466 SE2d 

837) (1996) (Where this Court ruled in a direct appeal that the 

appellant failed to preserve any objection to a particular jury 

instruction, and the appellant subsequently initiated habeas corpus 

proceedings, the habeas court was bound under the law of the case 

doctrine by this Court’s ruling “regardless of whether that ruling 

may [have been] erroneous.”). After remittitur issued on August 7, 

2019, in Case No. S19A1281, we have ever since been required to 

adhere to our ruling in the July 2019 dismissal order regarding 

when the judgment on Appellant’s convictions became final. When 

the case returned to us on November 3, 2021, with the docketing of 

Case No. S22A0300, the law of the case doctrine prevented us from

issuing a ruling that was inconsistent with that ruling, as we did in 

the December 2021 order that returned the case to the trial court. 

Thus, despite our holding in Seals, the trial court’s entry of an order 

of nolle prosequi as to Count 4 was not required to bring finality to 

the March 2014 sentence in Appellant’s case, and the January 18, 

2022 nolle prosequi order could not give Appellant a new 

opportunity to litigate his motion for a new trial.

As to the proceedings on Appellant’s granted out-of-time 

appeal, which resulted in the November 18, 2020 order denying his 

motion for a new trial, in Cook v. State, 313 Ga. 471 (870 SE2d 758) 

(2022), this Court eliminated the out-of-time-appeal procedure in 

trial courts, a procedure that we had created nearly fifty years

earlier. In Cook, we held that a trial court is without jurisdiction to 

decide a motion for out-of-time appeal on the merits “because there 
4

was and is no legal authority[,]” that is, no constitutional or 

statutory authority, “for motions for out-of-time appeal in trial 

courts.” Id. at 506 (5). Cook also concluded that this holding is to be 

applied to “all cases that are currently on direct review or otherwise 

not yet final[,]” id., and directed that “pending and future motions 

for out-of-time appeals in trial courts should be dismissed, and trial 

court orders that have decided such motions on the merits . . . should 

be vacated if direct review of the case remains pending or if the case 

is otherwise not final.” Id. at 505 (4).

Accordingly, the trial court’s February 20, 2020 order granting 

Appellant’s motion for out-of-time appeal is vacated. Without the 

granted out-of-time appeal, the trial court lacked jurisdiction to 

decide Appellant’s March 2, 2020 motion for a new trial; therefore, 

this appeal from the trial court’s November 18, 2020 order denying 

that motion is dismissed. In addition, this case is remanded for entry 

of an order vacating the November 18, 2020 order and dismissing 

the March 2, 2020 motion. Finally, the trial court is directed to 

vacate any other rulings on filings subsequent to the granted out-oftime appeal, which it similarly lacked jurisdiction to decide under 

Cook. 

All the Justices concur. 

SUPREME COURT OF THE STATE OF GEORGIA

Clerk’s Office, Atlanta

I certify that the above is a true extract from the

minutes of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto

affixed the day and year last above written.

, Clerk
5

ELLINGTON, Justice, concurring.

Although I reluctantly agree with this Court’s decision, under 

the law of the case doctrine, to vacate the trial court’s order granting 

Robert Kyle Dougherty an out-of-time appeal, to dismiss this appeal

from the order denying Dougherty’s motion for a new trial on the 

merits, and to remand the case to the trial court, I write separately 

to express my discomfort with where our precedent has led us: to 

denying a hearing on the merits based on the simple fact that a 

criminal defense attorney required his client to sign a motion for a 

new trial, rather than signing it himself without ever formally 

withdrawing as counsel of record.

OCGA § 5-6-30 provides:

It is the intention of this article [i.e., the Appellate 

Practice Act] to provide a procedure for taking cases to the 

Supreme Court and the Court of Appeals, as authorized 

in Article VI, Sections V and VI of the Constitution of this 

state; to that end, this article shall be liberally construed 

so as to bring about a decision on the merits of every case 

appealed and to avoid dismissal of any case or refusal to 

consider any points raised therein, except as may be 

specifically referred to in [the APA].
6

(Emphasis added.) The APA provides more reasons an appeal may

not be dismissed than it provides grounds for dismissal. See, e.g., 

OCGA § 5-6-48. Yet eight years of post-conviction litigation in this 

case have culminated in a procedural disposition, not a merits-based 

decision, through no fault on Dougherty’s part. 

Here are the facts in rather more detail than the above order 

of the Court. After Dougherty participated with Stephen Lober in a 

2012 attempted armed robbery that resulted in the fatal shooting of 

Trevorius Thomas, a Monroe County grand jury indicted Dougherty 

on nine counts, including armed robbery (Count 4). In 2013, Lober 

entered a guilty plea. At the beginning of Dougherty’s trial in March 

2014, the prosecutor told the court, “I’m not going to call Count 4. 

We’re not going to proceed on the armed robbery charge.” 

Dougherty’s counsel responded, “we’re okay with that,” and the 

court commenced jury selection. A redacted indictment, omitting 

Count 4, was submitted to the jury when deliberations began. The 

jury found Dougherty guilty of felony murder, predicated on 

aggravated assault with intent to rob, and five related felonies. On 
7

March 27, 2014, the trial court sentenced Dougherty to an aggregate 

prison term of life plus 20 years. Like the verdict form and the 

redacted copy of the indictment submitted to the jury, the judgment 

simply skipped from Count 3 to Count 5. 

On March 31, 2014, four days after entry of judgment, 

Dougherty filed a motion for a new trial. The motion was typed on 

his trial attorney’s letterhead. The motion contained all of the 

elements of what we consider a “placeholder” motion for a new trial 

that trial lawyers typically file: the motion correctly identified the 

judgment, asserted the “general grounds,” requested an opportunity 

to amend the motion and to have a hearing after the trial transcript 

had been prepared and counsel had had sufficient time for review 

and research, and contained a certificate of service on the 

prosecutor. Such placeholder motions are filed by trial counsel so 

that a convicted defendant’s rights to post-conviction review are not 

lost by his failure to file either a motion for a new trial or a notice of 
8

appeal within 30 days after judgment1 – including the right to assert 

that his trial attorney’s performance was deficient to an extent that 

deprived him of his Sixth Amendment right to counsel. A convicted 

defendant’s trial attorney is not permitted to assert a claim 

asserting his own ineffectiveness as counsel, but new post-conviction 

counsel can later amend a trial attorney’s placeholder motion to 

assert the claim. But, for reasons that were never developed in the 

record, Dougherty’s trial counsel did not sign the motion that was 

typed on his stationery. The motion had a signature line only for 

Dougherty, following the statement, “Defendant now files this 

motion over his [own] signature, representing herself [sic], until he 

completes financial arrangements with appellate counsel of his 

choice or moves this court to appoint counsel for him due to his

inability to hire counsel.” The trial transcript was filed less than 

three months later, on May 22, 2014. In August 2014, the trial court 

 1 A placeholder motion to withdraw a guilty plea is also often filed, but 

the deadline for such a motion is the end of the term of court in which sentence 

is imposed, “which may be as short as the same day or as long as seven 

months.” Dos Santos v. State, 307 Ga. 151, 158 (5) (834 SE2d 733) (2019).
9

ordered that Dougherty be brought to court for a motions calendar 

on September 17, 2014.

On September 23, 2014, new post-conviction counsel filed an 

entry of appearance along with another placeholder motion for a new 

trial on Dougherty’s behalf. The trial court held a hearing on the 

motion on August 18, 2018. During that nearly four-year interval, 

the trial court entered multiple “bring back” orders, including one 

setting the hearing on the motion for a new trial for November 17, 

2016. Post-conviction counsel requested a continuance, which the 

trial court granted, and the trial judge sua sponte recused himself 

from the case. Just four days before the scheduled August 18, 2018 

hearing, post-conviction counsel amended the placeholder motion for 

a new trial she had filed. The trial court entered an order denying 

the motion on January 30, 2019. Dougherty, through counsel, filed 

a timely notice of appeal on February 22, 2019. In dismissing 

Dougherty’s first appeal, for the reasons set out in our order above, 

we advised Dougherty that he could seek an out-of-time appeal in 

the trial court, citing Rowland v. State, 264 Ga. 872, 875-876 (452 
10

SE2d 756) (1995). Under Rowland and other cases, an out-of-time 

appeal was then an available remedy when a convicted defendant’s 

rights were lost because of trial counsel’s failure to act to preserve 

them.

After we remitted the case to the trial court, the trial court 

entered a consent order granting Dougherty an out-of-time appeal, 

finding that Dougherty

was entitled to an appeal as of right after his conviction 

and in fact exercised that right by filing a timely Motion 

for New Trial and subsequent Notice of Appeal. Trial

counsel was ineffective for failing to withdraw from the 

case before the filing of [Dougherty’s] pro se Motion for 

New Trial, which was written on said counsel’s legal 

station[e]ry. [Dougherty] relied on trial counsel’s advice

in regards to protecting his appellate rights as evidenced 

by the Motion for New Trial being written on trial 

counsel’s station[e]ry.

Dougherty, with assistance of counsel, then filed a motion for a new 

trial, and the trial court entered an order adopting its previous 

ruling denying Dougherty’s motion for a new trial on November 18, 

2020. Dougherty filed a timely notice of appeal on December 16, 

2020. 
11

Another year passed, and then this Court dismissed

Dougherty’s second appeal, Case No. S22A0300, based on a recently 

issued decision under which we ruled that Dougherty’s case 

remained pending in the trial court, with no final and appealable 

judgment, because Count 4 was unresolved. See Seals v. State, 311 

Ga. 739 (860 SE2d 419) (2021). Upon return of the case to the trial 

court, the State submitted a proposed order of nolle prosequi as to 

Count 4 of the indictment, and the trial court entered the nolle 

prosequi order on January 18, 2022. Dougherty then filed a timely 

notice of appeal on February 1, 2022.2

 2 Absent application of the law of the case doctrine, instead of dismissing 

Dougherty’s appeal, we would instead be sending the case back to the trial 

court again. In cases like this one, but without an earlier dismissal order tying 

our hands, we have deemed motions for a new trial, although not filed within 

30 days after entry of judgment on fewer than all counts of a multi-count 

indictment, to be merely premature, rather than untimely, under Seals. Such 

motions ripen upon entry of an order of nolle prosequi or other means of 

finalizing the judgment. Before the date a judgment becomes final under Seals, 

any previous ruling on a motion for a new trial is a nullity under Southall v. 

State, 300 Ga. 462 (796 SE2d 261) (2017), and Pounds v. State, 309 Ga. 376

(846 SE2d 48) (2020). In such cases, we remand to the trial court for a valid 

ruling on the pending motion for a new trial. See, e.g., Norris v. State, Case No. 

S22A0797, order vacating order denying a motion for new trial, dismissing 

appeal, and remanding with direction to enter an order on the motion for new 

trial, entered May 17, 2022. 
12

Does Dougherty, after jumping through every hoop the law 

placed before him, finally get to have the last stage of the criminal 

process at which he enjoys the right to counsel – appellate review of 

the judgment? No. By the time Dougherty secured an out-of-time 

appeal in the trial court, as we suggested when we dismissed his 

first appeal, and the trial court again ruled on the merits of his 

motion for a new trial, we had issued Seals. In our December 2021 

dismissal order, we declared that judgment on Dougherty’s 

convictions actually had never become final, because of the vanished 

Count 4, and therefore his case needed another trip to the trial court 

before his convictions would be appealable. That journey, pointless 

according to our current ruling, kept Dougherty’s case in the 

“pipeline” long enough so that the out-of-time appeal, which 

otherwise would have allowed appellate review on the merits, came 

to be equally meaningless by our holding in Cook that invalidated 

any proceedings flowing from a granted out-of-time appeal in a court 

of conviction (as opposed to in a habeas court) “if direct review of the 

case remains pending or if the case is otherwise not final.”
13

By application of the law of the case rule, we are reaching 

through a holding in our July 2019 dismissal order, all the way back 

eight years to Dougherty’s original 30-day window for filing a motion 

for a new trial. Although his trial counsel flatly abandoned him, we 

nevertheless presume that, at least until that 30-day window closed, 

the legal representation continued and hobbled Dougherty’s ability 

to protect his rights himself. In our July 2019 dismissal order, we 

cited White v. State, 302 Ga. 315 (806 SE2d 489) (2017), for this 

presumption.3 In White, we held that the defendant’s pro se motions 

 3 In our July 2019 dismissal order, we also cited Tolbert v. Toole, 296 Ga. 

357 (767 SE2d 24) (2014), in which we held that “[a] formal withdrawal of 

counsel cannot be accomplished until after the trial court issues an order 

permitting the withdrawal. Id. at 362. Until such an order properly is made 

and entered, no formal withdrawal can occur and counsel remains counsel of 

record.” (Citation and punctuation omitted.) Based on that rule, a habeas 

petitioner could not show that his pro se notice of appeal was legally valid 

because he could not show from the record that he was not represented by 

counsel on the date he filed the notice of appeal. Id. But see Walker v. State, 

308 Ga. 749, 753 (843 SE2d 561) (2020) (Although a convicted defendant filed 

pro se a timely motion for a new trial before the filing of an order allowing his 

counsel to withdraw, the pro se motion was effective and not a nullity because 

he filed it after the trial court found orally, on the-record, in open court, that 

the defendant had freely, intelligently, and knowingly elected to waive his 

right to counsel and to represent himself. “And unlike in Tolbert, nothing in 

[the] record suggest[ed] that the trial court’s oral order was not understood, by 

the court or the defendant’s existing or replacement counsel, to immediately 

remove [the defendant’s] counsel without the entry of a written order for the 

purposes of allowing [the defendant] to proceed pro se.”).
14

to withdraw his guilty plea, timely filed before the end of the term 

of court in which he was sentenced, were legal nullities, because, 

at a minimum, legal representation [of a defendant who 

enters a guilty plea] continues – unless interrupted by 

entry of an order allowing counsel to withdraw or 

compliance with the requirements for substitution of 

counsel, see USCR 4.3 (1) - (3) – through the end of the 

term at which a trial court enters a judgment of conviction 

and sentence on a guilty plea, during which time the court 

retains authority to change its prior orders and 

judgments on motion or sua sponte for the purpose of 

promoting justice.

Id. at 319.4 The purpose of the rule that a criminal defendant cannot 

simultaneously exercise his constitutional right to represent himself 

and his constitutional right to the assistance of counsel is to prevent 

 4 The reference to USCR 4.3 (1) - (3) is to the uniform superior court rule 

providing the procedures to be followed for “[a]n attorney appearing of record 

in any matter pending in any superior court, who wishes to withdraw as 

counsel for any party” to request an order permitting such withdrawal. When 

a client wishes to substitute counsel, an order allowing the former attorney to 

withdraw is not required; the substitution can be accomplished by filing a 

notice of substitution of counsel in the proper form. Id. See also USCR 30.2 

(“Upon arraignment, the attorney, if any, who announces for or on behalf of an 

accused, or who is entered as counsel of record, shall represent the accused in 

that case throughout the trial, unless other counsel and the defendant notify 

the judge prior to trial that such other counsel represents the accused and is 

ready to proceed, or counsel is otherwise relieved by the judge.”).
15

the disruption of dueling defenses.5 Nothing like that happened 

here. In effect, at least since our decision in White, we are pitting 

these important rights against each other, to the detriment of both. 

 5 See Brooks v. State, 265 Ga. 548, 551 (8) (458 SE2d 349) (1995) (A brief 

filed by an appellant pro se, seeking to assert an additional claim of error not 

asserted in the brief filed by his attorney, was not entitled to consideration 

because the appellant was represented by counsel in the pending appeal and 

could not also represent himself.). In Cargill v. State, 255 Ga. 616 (340 SE2d 

891) (1986), overruled on other grounds by Manzano v. State, 282 Ga. 557 (651 

SE2d 661) (2007), we explained:

A criminal defendant has a constitutional right of selfrepresentation which derives from the Sixth Amendment. Faretta 

v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562) (1975). 

Under the Sixth Amendment, it has been held that the assertion 

of the right to be represented by counsel constitutes a waiver of the 

Sixth Amendment right of self-representation. Thus, the Sixth 

Amendment right does not afford the defendant the hybrid right 

to simultaneously represent himself and be represented by 

counsel.

Art. I, Sec. I, Par. IX of the Constitution of Georgia, 1976 

provided that “no person could be deprived of the right to defend 

himself, in person, by attorney, or both.” However, Art. I, Sec. I, 

Par. IX, Constitution of Georgia, 1976, has been superseded by Art. 

I, Sec. I, Par. XII, Constitution of Georgia, 1983, and a person no 

longer has the right to represent himself and also be represented 

by an attorney, i.e., the right to act as co-counsel.

Cargill, 255 Ga. at 622-623 (citations and punctuation omitted). See Ga. 

Con. of 1983, Art. I, Sec. I, Par. XII (“Every person charged with an offense 

against the laws of this state shall have the privilege and benefit of 

counsel;[.]”); Smith v. State, 267 Ga. 372, 377 (477 SE2d 827) (1996) (“A party 

does not have the hybrid right, under either the State or Federal Constitution, 

to simultaneously represent himself and be represented by counsel.”); see 

generally Joseph A. Colquitt, “Hybrid Representation: Standing the Two-Sided 

Coin on Its Edge,” 38 Wake Forest L. Rev. 55 (2003).
16

The result of the unrebuttable presumption of continued 

representation is that the right to counsel itself locks the doors of 

the courthouse against a convicted defendant, abandoned by his 

trial counsel, until the clock runs out on his rights.6 There may be 

the rare defendant who, in a few short weeks, potentially while 

transitioning from jail into the state penitentiary system and 

 6 In White, we mused that “[t]here may be some period of time after which 

it no longer would be reasonable to treat a convicted defendant who has not 

filed a timely appeal or motion extending the time to appeal, or a timely motion 

to withdraw his guilty plea, as still represented by his trial or plea counsel[,]” 

but continued: “[w]e need not decide today exactly what that period is, because 

Appellant filed his pro se motions seeking to withdraw his guilty pleas well 

before the end of the term in which the judgments of conviction and sentence 

on his guilty pleas were entered.” 302 Ga. at 319 (2). In other words, we do not 

know how long the legal representation is presumed to continue, but we are 

certain it is long enough to outlast the statutory time limits for initiating postconviction proceedings. I note that in deciding White in 2017 we expressly 

invoked the availability of the out-of-time appeal remedy in trial courts then 

available for defendant’s whose rights were lost due to the ineffective 

assistance of counsel. A few months after we dismissed Dougherty’s first 

appeal, we decided Dos Santos and doubled down on our holding in White, 

chiding that 

Georgia lawyers cannot simply abandon their criminal 

defendant clients immediately after the defendants enter guilty 

pleas and are sentenced. Defense counsel are obligated to continue 

to represent their clients at least until the time for these postconviction remedies expires (and if such a remedy is timely 

pursued, until it is resolved).

307 Ga. at 157 (5). Again, we referred abandoned defendants to the 

remedy of seeking an out-of-time appeal in the trial court or in habeas corpus

proceedings. Id. at 159 (5).
17

through the diagnostic and classification process, manages either to 

obtain new counsel or to have his right to self-representation 

formally restored to him under Faretta v. California, 422 U. S. 806, 

818-821 (III) (A) (95 SCt 2525, 45 LE2d 562) (1975), so that his pro 

se filings will not be nullities. See Martin v. State, 306 Ga. 538, 539 

n.1 (832 SE2d 402) (2019). Furthermore, many convicted 

defendants, robbed of post-conviction review by trial counsels’ 

failures, can at least seek the remedy of an out-of-time appeal or 

other relief in habeas proceedings, albeit without any right to 

appointed counsel in such civil proceedings,7 if they can file a 

petition for a writ of habeas corpus in time.8 Dougherty, however, 

 7 See Crosson v. Conway, 291 Ga. 220, 221 (1) (728 SE2d 617) (2012); 

Gibson v. Turpin, 270 Ga. 855, 857 (1) (513 SE2d 186) (1999).

8 It is troubling that the Court’s standard advisory in dismissal orders 

(in the post-Rowland era, until our 2022 decision in Cook) – an advisory that 

was included in our July 2019 dismissal order in this case – did not advise 

appellants that they could seek an out-of-time appeal in the jurisdiction of 

confinement in habeas corpus proceedings. We typically only advised them 

that they could seek an out-of-time appeal in the trial court under Rowland. 

As we know too well, and have documented in a great many first footnotes in 

murder cases, it has not been uncommon for out-of-time appeal proceedings in 

trial courts to take years. For some who took us at our word and filed motions 

for out-of-time appeals in their trial courts under Rowland, rather than 

heading directly to habeas proceedings, and whose cases unfortunately were 

not final when we issued Cook, the time wasted in seeking an out-of-time 
18

has already lost even that dubious opportunity: his judgment 

became final in April 2014, far longer ago than the four years 

allowed under OCGA § 9-14-42 to initiate habeas proceedings. 

Dougherty will never have an appellate decision on the merits 

of his motion for a new trial or other matters he could have raised in 

a direct appeal, solely because his trial attorney refused to sign that 

first motion for a new trial, in violation of his duties as a member of 

the bar and an officer of the court. Decisions of this Court have 

dictated this outcome.9 How far we have strayed from the intent of 

OCGA § 5-6-30.

 

appeal in the trial court potentially consumed the time allowed for pursuing 

an out-of-time appeal through habeas proceedings.

9 Given our holdings in White and Dos Santos, this is no longer a problem 

that can be addressed at the trial court level. See Shank v. State, 290 Ga. 844, 

849 (5) (c) (725 SE2d 246) (2012) (admonishing “that it is the duty of all those 

involved in the criminal justice system, including trial courts and prosecutors 

as well as defense counsel and defendants, to ensure that the appropriate postconviction motions are filed, litigated, and decided without unnecessary 

delay”); Owens v. State, 303 Ga. 254, 260 (4) (811 SE2d 420) (2018) (noting 

that, despite our admonition in Shank, “it is clear that there remain far too 

many participants in our criminal justice system who are not paying sufficient 

attention” to the problem of post-conviction, pre-appeal delays and directing 

the Counsel of Superior Court Judges within six months to “submit to this 

Court for approval a proposed Uniform Rule of Superior Court designed to 

address this problem”); USCR 41.1, effective January 1, 2019 (“Counsel are 

reminded of their general ethical obligation to make reasonable efforts to 
19

I am authorized to state that Justice LaGrua joins in this 

concurrence.

 

expedite litigation consistent with the interests of their clients. The motion for 

new trial shall be heard and decided as promptly as possible. . . . A ruling on 

the motion shall be rendered within the time period required by law upon the 

record on the motion being complete and the transcript and post-hearing 

motions or other matters being submitted.”).