Untimely Out-of-Time Appeal Motions and Appellate Jurisdiction: The Mootness Dispute in Sims v. State

1. Introduction

Sims v. State concerns the relationship between three separate questions: whether a trial court has jurisdiction to entertain an untimely request for an out-of-time appeal, whether an appellate court can review the trial court’s disposition of that request, and whether the resulting appeal is moot.

Gregory Sims pleaded guilty to criminal damage to property and related offenses on December 18, 2024. On July 7, 2025, he moved for permission to pursue an out-of-time appeal under OCGA § 5-6-39.1(a). The trial court denied the motion, citing the expiration of the 30-day period for filing a motion for new trial under OCGA § 5-5-40 and the statutory deadline for seeking out-of-time relief.

The Court of Appeals dismissed Sims’s appeal in an unpublished order. It concluded that he did not qualify for statutory relief and then treated the challenge to the trial court’s ruling as moot, leaving it without appellate jurisdiction. Sims sought certiorari.

The Supreme Court denied review. Justice McMillian’s dissent agreed that Sims was ineligible for an out-of-time appeal, but disputed the procedural consequences. In her view, the Court of Appeals should have exercised appellate jurisdiction to correct the trial court’s disposition, rather than dismissing the appeal as moot.

2. Statutory Framework and Procedural Background

The ordinary statutory route

OCGA § 5-6-39.1(a)(1) permits a defendant who satisfies specified criteria to seek leave to file an out-of-time motion for new trial or notice of appeal. The request must be made within 100 days after expiration of the applicable ordinary filing period. The 100-day period is therefore not described as running directly from the guilty plea or judgment.

The dissent accepted that Sims’s motion fell outside the applicable statutory window. Its disagreement concerned neither the calculation of that deadline nor Sims’s eligibility under subsection (a).

The limited transitional route

OCGA § 5-6-39.1(b) provided a separate, temporary avenue for defendants whose specified out-of-time proceedings had been dismissed because of Cook v. State and its progeny. That provision operated only until June 30, 2026.

The limited record did not establish a qualifying previous dismissal in Sims’s case. Subsection (b) therefore supplied no demonstrated basis for relief. It was not a general extension available to every defendant who missed subsection (a)’s deadline.

The disputed procedural step

According to the dissent, the trial court’s inability to entertain Sims’s untimely motion did not eliminate the Court of Appeals’ authority to review the resulting order. That distinction supplied the entire basis for the proposed intervention: Sims could properly lose his request for out-of-time relief while still obtaining appellate correction of the jurisdictional form of the trial court’s ruling.

3. Summary of the Court’s Action and the Dissent

The Supreme Court’s operative decision was simply to deny certiorari. It did not explain the denial or expressly approve the Court of Appeals’ mootness analysis. The denial left the lower court’s disposition undisturbed, but should not be treated as a reasoned Supreme Court holding adopting that analysis.

Justice McMillian would have granted review for three connected reasons:

1. The appellate dismissal was erroneous: an untimely trial-court motion does not, for that reason alone, destroy appellate jurisdiction over the order disposing of it.
2. The error conflicted with precedent: Supreme Court decisions, and other Court of Appeals decisions, had reviewed orders concerning untimely requests for out-of-time relief.
3. The issue was recurring and important: the same reasoning had appeared in multiple unpublished orders, and the underlying misunderstanding of mootness could affect civil and criminal litigation.

The dissent proposed a precise corrective sequence: grant certiorari, vacate the Court of Appeals’ disposition, and remand for that court to vacate the trial court’s order and direct dismissal of Sims’s motion. It did not propose granting Sims an out-of-time appeal or reviewing his convictions.

4. Analysis of the Precedents Cited

The following authorities appear in the dissent’s explanation of the dispute. Because the Supreme Court supplied no majority reasoning, they should not be described as authorities adopted by a majority in this case.

A. The historical basis for transitional relief

Cook v. State, 313 Ga. 471, 506 (2022), appears principally through the statutory exception in OCGA § 5-6-39.1(b). That exception addressed certain prior dismissals attributable to Cook v. State and its progeny. The dissent did not undertake an independent examination of that decision’s full reasoning. Its immediate significance was that Sims had not shown the qualifying procedural history necessary to invoke subsection (b).

B. The authorities underlying the Court of Appeals’ mootness approach

Carlock v. Kmart Corp., 227 Ga. App. 356, 361 (1997), supplied a conventional description of mootness: an issue is moot when deciding it would have no practical effect on the controversy or when the issues have ceased to exist. The dissent’s objection was not to that general formulation, but to treating statutory ineligibility as equivalent to the disappearance of a controversy.

Ferguson v. State, 197 Ga. App. 443, 443 (1990), held that a request for appointed counsel became moot when the defendant was not entitled to an out-of-time appeal. Its stated holding concerned an ancillary request for counsel. The dissent rejected the use of that reasoning to dismiss appellate review of the underlying order itself: a dependent request becoming moot does not necessarily mean that the principal jurisdictional dispute is moot.

C. Direct authority concerning OCGA § 5-6-39.1

• Martin v. State, S26A1488, slip op. at 1 (Ga. Sept. 22, 2026), 2026 WL 2831691, affirmed dismissal of a motion for an out-of-time appeal under OCGA § 5-6-39.1. Its relevance was procedural: the Supreme Court reviewed the disposition of the motion rather than treating the defendant’s inability to obtain relief as eliminating appellate jurisdiction.

• Conner v. State, S26A1021, slip op. at 2–3 (Ga. Sept. 9, 2026), 2026 WL 2647699, vacated a trial court’s grant of an out-of-time appeal that failed the statute’s timing requirements and remanded for dismissal. It illustrates both the jurisdictional nature of the statutory deadline and the appellate court’s authority to correct an order entered without trial-court jurisdiction.

• Merilien v. State, S26A0704, slip op. at 1–3 (Ga. Aug. 13, 2026), 2026 WL 2347990, affirmed dismissal because the trial court lacked jurisdiction over an untimely motion. The dissent quoted its express characterization of the statutory time limits as “jurisdictional.” This supplied the clearest explanation of why dismissal, rather than a substantive denial, was the appropriate trial-court disposition.

• Burkett v. State, 324 Ga. 415, 416 (2026), directly rejected a district attorney’s argument that the Supreme Court lacked jurisdiction over an appeal from dismissal of a motion for leave to file an out-of-time appeal. The Court instead addressed the appeal on its merits. This was particularly important because it expressly addressed the appellate-jurisdiction objection, rather than merely illustrating appellate review in practice.

D. Analogous untimely postjudgment motions

Bonner v. State, 310 Ga. 426, 427–28 (2020), concerned an untimely motion to withdraw a guilty plea. Although the trial court lacked jurisdiction to decide that motion, the Supreme Court retained appellate jurisdiction, vacated the ruling, and remanded. The case supported the broader distinction between a defect in the proceeding below and the appellate court’s authority to review that defect.

Lay v. State, 289 Ga. 210, 211–12 (2011), applied the same distinction to an untimely motion in arrest of judgment. Its statement that untimeliness was “not a defect in appellate jurisdiction” provided an explicit doctrinal foundation for the dissent’s position.

Together, these decisions showed that the dissent’s analysis was not confined to the recently enacted out-of-time appeal procedure. It reflected an existing approach to appellate review of jurisdictionally defective postjudgment motions.

E. The substantive test for mootness

McAlister v. Clifton, 313 Ga. 737, 738 (2022), involved a challenge to custody and visitation concerning a child who turned 18. The requested remedy no longer benefited the party seeking it, so the controversy was moot.

This provided a useful contrast. In McAlister v. Clifton, changed circumstances removed the practical utility of the requested relief. In Sims’s case, the dissent viewed the controversy as continuing to concern an existing adverse order and a remedy that would matter to him if available. His inability to establish legal entitlement was a reason to reject his position, not a reason to label the dispute moot.

F. Recurrence and conflicting Court of Appeals dispositions

Akins v. State, A26A1442 (Order dated March 11, 2026), and Gaddis v. State, A26A1054 (Order dated January 27, 2026), were identified as other instances in which the Court of Appeals had treated a defendant’s ineligibility for an out-of-time appeal as defeating appellate jurisdiction. The dissent supplied limited details about those orders; their principal role was to demonstrate recurrence.

Teague v. State, A26A1159, slip op. at 2 (Ga. Ct. App. Aug. 4, 2026), 2026 WL 2238625, affirmed denial of an untimely motion for leave to file an out-of-time appeal. Whatever the precise form of its disposition, it illustrated appellate review rather than dismissal of the appeal for mootness.

Thompson v. State, 379 Ga. App. 440, 441 (2026), vacated an order granting an out-of-time appeal to an ineligible defendant and remanded for dismissal of the motion. It more directly illustrated the corrective approach favored by the dissent. These contrasting decisions supported the claim that the Court of Appeals’ treatment of the issue was inconsistent.

5. Legal Reasoning

A. Trial-court jurisdiction and appellate jurisdiction are separate inquiries

The dissent’s central proposition was that the trial court’s lack of authority to entertain a motion does not automatically deprive an appellate court of authority to review the order disposing of that motion. Appellate review may be necessary precisely to identify the jurisdictional defect and require the correct disposition.

This does not mean that every order is appealable or that ordinary appellate prerequisites disappear. It means that the particular defect identified here—the untimeliness of Sims’s trial-court motion—was not itself a sufficient basis for dismissing his appeal.

B. Dismissal differs from denial

A denial generally rejects a request after considering it on a permissible basis. A jurisdictional dismissal recognizes that the court lacks authority to entertain the request. Because the statutory filing limits were jurisdictional under the cited decisions, the dissent considered dismissal the proper response to Sims’s motion.

The distinction did not create eligibility for relief. Both routes left Sims without an out-of-time appeal. Nevertheless, the legal basis of the disposition mattered: a court should not purport to exercise decision-making authority that the governing statute withholds.

C. Mootness is not a substitute for deciding an unsuccessful claim

The dissent separated the practical usefulness of a remedy from the claimant’s ability to establish a legal right to it. A claim can remain live even when existing law makes it unsuccessful. Otherwise, a conclusion that a litigant must lose could routinely be converted into a conclusion that the court lacks jurisdiction because the dispute is moot.

The references to deciding the “merits” of Sims’s appeal must therefore be read carefully. The dissent meant deciding whether the trial court disposed of the motion correctly—not reaching the merits of his convictions or authorizing an untimely appeal.

D. Certiorari required more than identifying error

Supreme Court Rule 40(1) states that certiorari is discretionary and reserved for cases of great public concern, gravity, or importance. The dissent relied specifically on conflicts with existing decisions and recurring important questions of state law under Rule 40(1)(a) and (c).

Its argument was institutional as well as doctrinal. Although the Court of Appeals’ orders were unpublished, repeated use of the same reasoning could perpetuate inconsistent treatment without producing a published decision suitable for correction. The dissent regarded that recurrence as a reason to intervene, rather than a reason to overlook the issue.

6. Potential Impact and Limits

Immediate effect: Sims obtained no relief. The Court of Appeals’ dismissal remained undisturbed, and the Supreme Court announced no new majority rule.

Guidance for future litigation: The dissent provides a structured argument for separating statutory eligibility, trial-court jurisdiction, appellate jurisdiction, and mootness. Its strongest support lies in the cited existing decisions, not in any binding force of the dissent itself.

Procedural significance: Correcting a denial to a jurisdictional dismissal may not change whether a defendant receives an appeal, but it preserves the distinction between adjudicating a request and recognizing an absence of authority to adjudicate it.

Broader relevance: The underlying mootness issue extends beyond criminal appeals. Courts in civil and criminal cases must distinguish a controversy that no longer has practical significance from one in which the claimant simply cannot prevail.

Important limitation: Nothing in the order or dissent relaxes the statutory deadline, revives subsection (b)’s expired transitional window, or establishes that Sims’s convictions should receive appellate review.

7. Complex Concepts Simplified

Out-of-time appeal

Permission to pursue an appeal after the ordinary deadline, subject here to statutory conditions and an additional filing window.

Jurisdiction

A court’s legal authority to act. The trial court’s authority over a late motion and the appellate court’s authority to review its order are distinct.

Mootness

The absence of a continuing controversy for which a judicial remedy can provide practical benefit. It is not simply another word for losing.

Vacatur and remand

Setting aside an existing order and sending the matter back for further action—here, the entry of a jurisdictional dismissal.

Certiorari

Discretionary higher-court review. Denial leaves the lower disposition in place without necessarily endorsing its reasoning.

Dissent

A judicial explanation disagreeing with the Court’s action. It may be persuasive but does not itself establish the Court’s binding holding.

8. Conclusion

Sims v. State establishes no new majority precedent. Its significance lies in a four-justice dissent insisting that an untimely motion, an unsuccessful appeal, and a moot controversy are different legal categories.

The dissent’s proposed result was narrow: Sims should still receive no out-of-time appeal, but the courts should reach that outcome through appellate review and a jurisdictional dismissal. The broader lesson is that correct jurisdictional reasoning matters even when it does not change the litigant’s ultimate access to relief.