Michael Brown v. State - Dismissed Appeal

GA Court of Appeals Opinions

Filed March 12th, 2026

Detected March 12th, 2026

Summary

The Court of Appeals of Georgia dismissed Michael Brown's direct appeal from the denial of his motion for an out-of-time motion for a new trial. The court found it lacked jurisdiction, citing recent legislative changes and prior case law regarding out-of-time appeals.

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What changed

The Court of Appeals of Georgia dismissed Michael Brown's direct appeal concerning his motion for an out-of-time motion for a new trial. The court determined it lacked jurisdiction because Brown had already undergone a direct appeal and the remedies for out-of-time relief, as outlined in OCGA § 5-6-39.1, were not applicable to his situation. The court referenced prior case law (Cook v. State) and the subsequent legislative enactment, emphasizing that such relief must typically be sought via habeas corpus or an extraordinary motion for new trial, not a direct appeal after a prior appellate review.

This decision reinforces the procedural limitations for defendants seeking to file out-of-time appeals or motions for new trials after their initial direct appeal has been resolved. Legal professionals representing criminal defendants should note that direct appeals from the denial of out-of-time motions are generally not permitted, and alternative avenues such as extraordinary motions for new trial or petitions for writ of habeas corpus are the appropriate procedural mechanisms. The ruling highlights the importance of adhering to specific statutory requirements and case law precedents when pursuing post-conviction appellate relief.

What to do next

Review OCGA § 5-6-39.1 for applicability to out-of-time appeals.
Advise clients that direct appeals from denials of out-of-time motions are generally not permissible after an initial direct appeal.
Consider extraordinary motions for new trial or habeas corpus petitions for post-conviction relief.

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March 12, 2026 Get Citation Alerts Download PDF Add Note

Michael Brown v. State

Court of Appeals of Georgia

Citations: None known
Docket Number: A26A1251
Disposition: Dismissed
Opinion
Authorities (5)
Cited By (0)
Summaries (0)
Similar Cases (0)
PDF

Disposition

Dismissed

Combined Opinion

Court of Appeals
of the State of Georgia

ATLANTA,____________________
March 12, 2026

The Court of Appeals hereby passes the following order:

A26A1251. MICHAEL BROWN v. THE STATE.

Following a jury trial, Michael Brown was convicted of two counts of
aggravated child molestation, three counts of child molestation, and aggravated sexual
battery. On appeal from the denial of Brown’s motion for a new trial, this Court
affirmed his convictions. Brown v. State, 336 Ga. App. 428 (785 SE2d 84) (2016). In
January 2026, Brown filed a motion for leave to file an out-of-time motion for a new
trial. The trial court denied that motion, and Brown filed this direct appeal. We lack
jurisdiction.
In Cook v. State, 313 Ga. 471, 506 (5) (870 SE2d 758) (2022), the Supreme Court
of Georgia determined that a trial court lacks authority to grant an out-of-time appeal,
and that any remedy involving an out-of-time appeal must be sought in habeas corpus.
In response, the legislature enacted OCGA § 5-6-39.1, which became effective on May
14, 2025. This statute allows for defendants to seek out-of-time relief if (1) the
defendant moves for leave to file an out-of-time motion for new trial or notice of
appeal within 100 days from the expiration of the time period for the filing of such
motion or notice, or (2) the defendant had an out-of-time motion or appeal dismissed
under Cook. OCGA § 5-6-39.1(b) does not apply to here, as Brown did not file his
motion for out-of-time motion for new trial within 100 days from the expiration of the
time period for filing a motion for new trial, nor did he have his conviction dismissed
under Cook.
Moreover, the remedies under OCGA § 5-6-39.1 are not available to Brown
because a he has already had a direct appeal. Richards v. State, 275 Ga. 190, 191 (563
SE2d 856) (2002) (a criminal defendant whose conviction has been affirmed on direct
appeal has no right of direct appeal from the denial of a motion for an out-of-time
appeal); see also Milliken v. Stewart, 276 Ga. 712, 713 (583 S.E.2d 30) (2003). Instead,
such a defendant “may gain further appellate review of the judgment of conviction by
filing an extraordinary motion for new trial or a petition for writ of habeas corpus.”1
Richards, 275 Ga. at 192, n. 1.
Finally, to the extent Brown’s pleading could be construed as an extraordinary
motion for new trial, we lack jurisdiction. An appeal from a trial court order disposing
of an extraordinary motion for a new trial must be initiated by filing an application for
discretionary review. OCGA § 5-6-35 (a) (7), (b); Balkcom v. State, 227 Ga. App. 327,
329 (489 SE2d 129) (1997). “Compliance with the discretionary appeals procedure
is jurisdictional.” Phaneuf v. Anthony, 375 Ga. App. 636, 638 (917 SE2d 191) (2025).
For the above reasons, this Court lacks jurisdiction over this appeal, which is
hereby DISMISSED.

Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
03/12/2026
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.

, Clerk.

1
Brown’s motion cannot be considered a petition for writ of habeas corpus
because “he filed it against the State in the superior court of the county of [his]
conviction, rather than against the warden of the institution in which he is
incarcerated in the superior court of the county of his incarceration.” Richards, 275
Ga. at 192, n. 1. See also OCGA § 9-14-43.