Untimely Out-of-Time Appeal Motions and Mootness: The Sims Certiorari Dissent

1. Introduction

This case concerns a distinction between a trial court’s authority to consider an untimely motion and an appellate court’s authority to review the resulting order. Gregory Sims sought permission to pursue an out-of-time appeal under OCGA § 5-6-39.1. Although the dissent agreed that his request was untimely and that he was not entitled to that relief, it rejected the conclusion that his appeal from the trial court’s ruling was therefore moot.

The opposing parties were Sims, the criminal defendant seeking appellate relief, and the State of Georgia. The supplied text does not describe the State’s arguments. The disagreement addressed in the dissent concerned the Court of Appeals’ reasoning, rather than the merits of Sims’s convictions.

Procedural background

1. On December 18, 2024, Sims pleaded guilty to criminal damage to property and related offenses.
2. On July 7, 2025, he moved for an out-of-time appeal under OCGA § 5-6-39.1(a).
3. The trial court denied the motion, citing the missed 30-day deadline for a motion for new trial under OCGA § 5-5-40 and the statutory deadline for seeking out-of-time relief.
4. The Court of Appeals dismissed his appeal in an unpublished order. It concluded that he could not obtain out-of-time relief and that review of the trial court’s ruling was consequently moot.
5. The Supreme Court denied certiorari. Four Justices would have granted review to correct the jurisdictional and mootness analysis.

The central question was therefore not whether Sims qualified for an out-of-time appeal—Justice McMillian agreed that he did not—but whether that lack of entitlement eliminated appellate jurisdiction over the order rejecting his request.

2. Summary of the Order and Dissent

The Court’s decision

The Supreme Court denied Sims’s petition for certiorari without explaining its reasons. That action left the Court of Appeals’ dismissal undisturbed. It did not expressly approve the lower court’s mootness analysis or adopt the dissent’s competing position.

The dissent’s position

Justice McMillian identified three separate questions:

• Statutory eligibility: Sims did not meet the requirements for out-of-time relief.
• Trial-court jurisdiction: The untimeliness deprived the trial court of authority to consider his motion, requiring dismissal rather than denial.
• Appellate jurisdiction and mootness: The defect in the motion did not prevent appellate review of the trial court’s disposition or make the appeal moot.

The dissent would have granted certiorari, vacated the Court of Appeals’ decision, and remanded with instructions for that court to vacate the trial court’s order and direct dismissal of Sims’s motion. That proposed disposition would not have authorized an appeal from Sims’s convictions.

3. Statutory Framework

OCGA § 5-6-39.1(a): The ordinary statutory route

As quoted in the dissent, subsection (a)(1) permits a defendant satisfying specified criteria to seek leave to file an out-of-time motion for new trial or notice of appeal, but only “within 100 days from the expiration of the time period” for the relevant filing. The 100-day period is therefore measured from the expiration of the original filing period, not simply from the conviction or guilty plea.

The dissent accepted that Sims’s motion fell outside the applicable statutory window. It treated that time limit as jurisdictional: once the window closed, the trial court lacked authority to consider the request under subsection (a).

OCGA § 5-6-39.1(b): A limited alternative route

Subsection (b) provided a separate, temporary route for defendants whose requests for out-of-time relief, or previously granted out-of-time relief, had been dismissed based on Cook v. State and its progeny. That route was available only until June 30, 2026.

The limited record did not show a qualifying prior dismissal involving Sims. Accordingly, the dissent found no basis for relief under subsection (b). It did not suggest that subsection (b) generally excused untimeliness under subsection (a).

4. Precedents Cited and Their Significance

A. Decisions underlying the Court of Appeals’ approach

Carlock v. Kmart Corp., 227 Ga. App. 356, 361 (1997)

This decision describes a moot issue as one in which the requested ruling would have no practical effect on the controversy or the issues have ceased to exist. The Court of Appeals relied on that principle to dismiss Sims’s appeal. The dissent did not reject the general definition; it rejected the inference that inability to obtain out-of-time relief necessarily meant that appellate review had no practical significance.

Ferguson v. State, 197 Ga. App. 443, 443 (1990)

This case held that a request for appointed counsel became moot when the defendant was not entitled to an out-of-time appeal. Its cited proposition concerns an ancillary request for assistance in pursuing unavailable relief. The dissent’s analysis exposes the difference between that situation and an appeal directly challenging the trial court’s disposition of the underlying motion.

B. Decisions addressing out-of-time appellate relief

Cook v. State, 313 Ga. 471, 506 (2022)

This decision matters here principally because OCGA § 5-6-39.1(b) identifies dismissals based on it and its progeny as a prerequisite to the temporary alternative remedy. The supplied opinion does not independently examine its broader reasoning. Its immediate relevance was that Sims’s record did not establish the qualifying prior dismissal.

Martin v. State, S26A1488 (Ga. Sept. 22, 2026)

The Supreme Court affirmed dismissal of a motion for out-of-time appeal under OCGA § 5-6-39.1. The dissent cited this as an example of appellate review producing an affirmance of the trial-level dismissal, rather than dismissal of the appeal for lack of appellate jurisdiction.

Conner v. State, S26A1021 (Ga. Sept. 9, 2026)

The Supreme Court vacated an order granting an out-of-time appeal that failed the statute’s timing requirements and remanded for dismissal of the request. This authority supported both the jurisdictional character of the deadline and the appellate court’s power to correct an order entered without trial-court jurisdiction. It also supplied a remedial model for Sims’s case.

Merilien v. State, S26A0704 (Ga. Aug. 13, 2026)

The Supreme Court affirmed dismissal because the trial court lacked jurisdiction over the motion. The dissent relied particularly on its explanation that the statutory time limits are jurisdictional. The case thus supported dismissal at the trial level while demonstrating that appellate review remained available.

Burkett v. State, 324 Ga. 415, 416 (2026)

This was especially direct support for the dissent’s jurisdictional distinction. The Supreme Court rejected the district attorney’s contention that it lacked jurisdiction over an appeal from dismissal of a motion for leave to file an out-of-time appeal and addressed the appeal on its merits.

C. Broader authorities on jurisdiction and mootness

Bonner v. State, 310 Ga. 426, 427–28 (2020)

This case involved an untimely motion to withdraw a guilty plea. Although the trial court lacked jurisdiction to consider the motion, the Supreme Court retained appellate jurisdiction and vacated and remanded the trial court’s merits disposition. It demonstrated that the distinction invoked by the dissent extends beyond out-of-time appeal motions.

Lay v. State, 289 Ga. 210, 211–12 (2011)

The Court held that an untimely motion in arrest of judgment did not create a defect in appellate jurisdiction requiring dismissal of an appeal from the trial court’s ruling. Its importance lies in separating a jurisdictional defect in the underlying motion from the appellate court’s authority to review the order disposing of it.

McAlister v. Clifton, 313 Ga. 737, 738 (2022)

This decision supplied the dissent’s governing mootness formulation: a case becomes moot when resolution would decide an abstract question or the requested remedy no longer benefits the party seeking it. A custody and visitation challenge became moot when the child turned 18. Unlike a filing defect existing from the outset, that event removed the practical utility of the requested relief.

D. Conflicting Court of Appeals dispositions

Akins v. State, A26A1442 (order dated March 11, 2026)

The dissent identified this as another instance in which the Court of Appeals incorrectly concluded that it lacked jurisdiction because the defendant was not entitled to an out-of-time appeal. Its significance was evidence of recurrence rather than a detailed substantive analysis reproduced in the supplied text.

Gaddis v. State, A26A1054 (order dated January 27, 2026)

This was another example of the same alleged error. Together with Sims’s case and Akins v. State, it supported the dissent’s concern that the problem was repeated rather than isolated.

Teague v. State, A26A1159 (Ga. Ct. App. Aug. 4, 2026)

The Court of Appeals affirmed denial of an untimely request for out-of-time relief. Although that disposition used “denial,” its relevance here was that the appellate court reviewed the adverse ruling instead of dismissing the appeal as moot.

Thompson v. State, 379 Ga. App. 440, 441 (2026)

The Court of Appeals vacated an order granting statutory out-of-time relief and remanded for dismissal of the motion. This decision aligned with the dissent’s proposed distinction between appellate review and trial-court jurisdiction, while demonstrating inconsistency within the Court of Appeals’ treatment of these cases.

5. Analysis of the Legal Reasoning

Jurisdiction must be assessed separately at each level

The dissent’s central proposition is that a trial court’s lack of jurisdiction over a motion does not automatically eliminate appellate jurisdiction over the order disposing of it. An appellate court can determine that the trial court lacked authority and correct the resulting order.

Otherwise, the very error requiring correction could become the reason appellate correction is unavailable. The cited decisions concerning guilty-plea withdrawal, arrest of judgment, and statutory out-of-time relief collectively support the dissent’s rejection of that result.

The proposition is limited: it does not mean that every appeal is jurisdictionally proper. An appeal must still satisfy its own applicable jurisdictional requirements. The point is that untimeliness of the underlying motion does not, by itself, establish a defect in appellate jurisdiction.

Inability to prevail is not the same as mootness

The Court of Appeals correctly recognized, in the dissent’s view, that Sims could not obtain statutory out-of-time relief. But it then treated that conclusion as establishing mootness. Justice McMillian regarded this as a category error.

A claim may remain a live controversy even when the governing law requires an adverse disposition. Mootness instead concerns whether a judicial decision can still provide meaningful relief concerning existing facts or rights. The dissent treated Sims’s challenge to an operative adverse order as live, notwithstanding the jurisdictional obstacle to his underlying request.

There is an important qualification: the dissent’s proposed correction would not give Sims permission to appeal his convictions. It would replace the incorrect procedural disposition with the correct one. Its reasoning therefore separates the continuing availability of appellate adjudication from ultimate entitlement to the substantive relief originally requested.

Dismissal and denial perform different functions

The dissent considered the trial court’s choice of disposition legally significant. When the statutory deadline deprives a court of jurisdiction, the appropriate action is dismissal, not a merits denial. An appellate court should enforce that boundary rather than treat the trial-level defect as a reason to terminate appellate review.

Certiorari requires more than identifying error

Justice McMillian expressly acknowledged that an erroneous appellate decision does not automatically justify Supreme Court review. Supreme Court Rule 40(1) reserves certiorari for matters of “great concern, gravity, or importance to the public.”

The dissent invoked two grounds: conflict with other decisions under Rule 40(1)(a), and an important recurring question of state law requiring resolution under Rule 40(1)(c). It emphasized that mootness affects civil and criminal litigation generally, making the issue broader than Sims’s unsuccessful statutory request.

The unpublished nature of the challenged orders ordinarily weighed against review. The dissent nevertheless reasoned that repeated use of the same analysis in unpublished orders might prevent the issue from ever reaching the Court through a published decision.

6. Potential Impact

Immediate effect: Sims obtained no relief. The Supreme Court’s denial left the Court of Appeals’ dismissal in place.

Persuasive significance: The four-Justice dissent provides a structured argument for distinguishing trial-court jurisdiction, appellate jurisdiction, and mootness. Future litigants may use that reasoning, together with the underlying authorities, to challenge similar appellate dismissals. The dissent itself is not a binding holding.

Procedural implications: If adopted in a future controlling decision, the dissent’s approach would preserve appellate review of otherwise reviewable orders addressing untimely statutory motions, while maintaining the strict limits on trial-court authority. It would not enlarge the statutory filing window or guarantee an out-of-time appeal.

Broader significance: The reasoning cautions courts against using mootness as a substitute for deciding jurisdictional or substantive defects. It also highlights a possible institutional problem: recurring unpublished dispositions can generate inconsistent procedural treatment without producing a conventional published conflict for review.

7. Complex Concepts Simplified

Out-of-time appeal

Permission, available only under applicable legal requirements, to initiate appellate proceedings after the ordinary deadline.

Trial-court jurisdiction

The trial court’s legal authority to consider a request. Here, the dissent concluded that the statutory deadline removed that authority.

Appellate jurisdiction

An appellate court’s authority to review a lower court’s order. That review may include deciding that the lower court lacked jurisdiction.

Mootness

A condition in which deciding the dispute can no longer provide meaningful relief. It is not simply another term for a legally unsuccessful claim.

Dismissal versus denial

Dismissal may reflect that the court cannot consider the request; denial generally indicates rejection of the requested relief. The dissent required dismissal because jurisdiction was absent.

Vacatur and remand

Setting aside an order and returning the matter to a lower court for further action, often with specific instructions.

Certiorari

Discretionary higher-court review. Denial leaves the challenged disposition standing without necessarily endorsing its reasoning.

8. Conclusion

The significance of SIMS v. State lies in its dissent rather than a newly established majority rule. Justice McMillian argued that an untimely statutory motion may require trial-level dismissal without making appellate review moot or defeating appellate jurisdiction.

The Supreme Court declined to resolve that dispute in this case. The dissent nevertheless identifies an important procedural principle: lack of authority to grant the underlying request, lack of authority to review an order, and absence of a live controversy are distinct legal questions and should not be conflated.