Court of Appeals
of the State of Georgia

                                        ATLANTA,____________________
                                                 June 06, 2019

The Court of Appeals hereby passes the following order:

A19A2067. MICHAEL BUCHANAN v. THE STATE.

      In 2003, Michael Buchanan entered Alford1 pleas to rape, kidnapping, and
several related offenses, and the trial court imposed a total sentence of life plus 20
years in prison. The record contains no indication that Buchanan filed a direct appeal
from his judgment of conviction. In 2017, Buchanan filed motions to set aside his
conviction and correct a void sentence, both of which the trial court denied in a single
order in April 2018. We dismissed Buchanan’s ensuing direct appeal on grounds
that: (i) the appeal was untimely; (ii) he had not raised a colorable claim that his
sentence is void; and (iii) an appeal will not lie from the denial of a motion to set
aside or vacate a judgment of conviction. Buchanan v. State, No. A19A0144 (Sept.
20, 2018).
      Back in the trial court, Buchanan filed a motion in which he raised several
challenges to the trial court clerk’s processing of his prior appeal. The trial court
construed Buchanan’s motion as seeking an out-of-time appeal from the court’s April
2018 order and denied the motion on the ground that this Court previously had
determined that he was not entitled to an appeal from that order. Buchanan then filed
the instant direct appeal. We lack jurisdiction.
      “An out-of-time appeal is a judicial creation that serves as the remedy for a
frustrated right of appeal.” Kilgore v. State, 325 Ga. App. 874, 875 (1) (756 SE2d 9)
(2014) (punctuation omitted). Thus, “an out-of-time appeal is appropriate when a
direct appeal was not taken due to ineffective assistance of counsel” – for an

      1
          North Carolina v. Alford, 400 U. S. 25 (91 SCt 160, 27 LE2d 162) (1970).
out-of-time appeal to be available on this ground, the defendant necessarily must have
had a right of direct appeal. Grantham v. State, 267 Ga. 635, 635 (481 SE2d 219)
(1997). An out-of-time appeal therefore is not available to pursue a second appeal
from a trial court judgment. See Jackson v. State, 273 Ga. 320, 320 (540 SE2d 612)
(2001) (a defendant “is not entitled to another bite at the apple by way of a second
appeal”); Kilgore, 325 Ga. App. at 875 (1) (“The out-of-time appeal is granted where
the deficiency involves not the trial but the denial of the right of appeal.”)
(punctuation omitted); see also generally Richards v. State, 275 Ga. 190, 191 (563
SE2d 856) (2002) (an out-of-time appeal is not available to a criminal defendant who
already has had a direct appeal).
      Here, Buchanan previously filed a direct appeal from the same trial court order
that is the subject of his request for an out-of-time appeal. Because Buchanan is not
entitled to a second appeal (regardless of whether an out-of-time appeal otherwise
may lie from a post-conviction proceeding), there is nothing for this Court to review
in the instant appeal. See Jackson, 273 Ga. at 320; Grantham, 267 Ga. at 635; see
also Cook v. State, 141 Ga. App. 241, 242 (233 SE2d 60) (1977) (“One cannot do
indirectly what the law says may not be done directly.”). Consequently, this appeal
is hereby DISMISSED. See Jackson, 273 Ga. at 320 (successive appeals from the
same trial court judgment should be dismissed); accord Richards, 275 Ga. at 191
(dismissing appeal from denial of motion for out-of-time appeal filed by defendant
seeking a second appeal from his conviction).

                                       Court of Appeals of the State of Georgia
                                              Clerk’s Office, Atlanta,____________________
                                                                        06/06/2019
                                              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.
