Malverty v. State
Malverty v. State
Opinion of the Court
Brian P. Malverty appeals the denial of his motion for an out-of-time appeal; for the reasons set forth below, we affirm.
In December 1985, a Fulton County Grand Jury returned an indictment charging Malverty with murder, felony murder, and related offenses in connection with the deaths of Charles E. West and Rickey L. Sims. In December 1986, Malverty pled guilty to two counts of felony murder and was sentenced to concurrent life terms. In
January 2016, Malverty filed a motion for an out-of-time appeal of his guilty plea, but the motion was denied; Malverty filed a timely notice of appeal to this Court.
1. Malverty first asserts that he is entitled to an out-of-time appeal because, he says, the September 1985 indictment is defective. This argument is without merit.
" 'When a defendant pleads guilty and then seeks an out-of-time appeal from that plea, he must make the threshold showing that he would have been entitled to file a timely direct appeal from the plea[.]' " (Citations omitted.) Moore v. State,
*543According to Malverty, his indictment was defective in five different ways. Four of those allegations-namely that the indictment fails to display the term in which the indictment was returned, fails to display the name of the individual who received the true bill, fails to display the date on which the indictment was received in open court, and fails to show the correct "clerk's number"-were waived by Malverty when he pled guilty. See Smith v. Hardrick,
2. Since 1989, Malverty has filed numerous motions in the Fulton County Superior Court seeking the state-funded production of documents, records, and transcripts relating to his December 1986 guilty-plea conviction. In April 1998, the trial court entered an order denying the various motions. Undeterred, Malverty has continued to file similar motions and, in this appeal, claims that the trial court has violated OCGA § 15-6-21 by failing to rule on his motions. Pretermitting whether such a claim may be properly raised or considered in the context of this appeal, the only judicial remedy for the violation of this statute is mandamus. See Brooks v. State,
Judgment affirmed.
All the Justices concur.
Reference
- Full Case Name
- MALVERTY v. The STATE.
- Cited By
- 4 cases
- Status
- Published