Thomas Larry Pyburn v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________

April 22, 2021 The Court of Appeals hereby passes the following order:

A21A1081. THOMAS LARRY PYBURN v. THE STATE.

Thomas Pyburn was convicted of incest and sentenced to 20 years of imprisonment. We affirmed his conviction on direct appeal. Pyburn v. State, 301 Ga. App. 372 (687 SE2d 909) (2009). Pyburn has filed several appeals in this Court.1 Most recently, the trial court denied Pyburn’s motions for leave to file an out-of-time appeal and for an evidentiary hearing on his out-of-time 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). Because Pyburn already has had a direct appeal, he is not entitled to an out-of-time appeal or an appeal of the denial of his motion for leave to file an out-of-time appeal. See Richards v. State, 275 Ga. 190, 191 (563 SE2d 856) (2002) (“[T]here is no right to directly appeal the denial of a motion for out-of-time appeal filed by a criminal defendant whose conviction has been affirmed on direct appeal.”); 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”). Accordingly, this appeal is hereby DISMISSED. See Richards, 275 Ga. at 191-192.

Court of Appeals of the State of Georgia

Clerk’s Office, Atlanta,____________________

04/22/2021 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.