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Wetherington v. State

Supreme Court of Georgia

February 2, 2015

WETHERINGTON
v.
THE STATE

Page 54

Murder, etc. Lowndes Superior Court. Before Judge McLane, Senior Judge.

Judgment affirmed.

Michael Wetherington, pro se.

J. David Miller, District Attorney, Jessica W. Clark, Assistant District Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.

HUNSTEIN, Justice. All the Justices concur, except Hines, P. J., Nahmias and Blackwell, JJ., who concur in judgment only.

OPINION

Page 55

Hunstein, Justice.

Appellant Michael Wetherington appeals the trial court's denial of his motion for an out-of-time appeal from his convictions based on a guilty plea in Lowndes County. Because Appellant has not shown that he had a right to file even a timely direct appeal, we affirm the trial court's denial of Appellant's motion for an out-of-time appeal.

[296 Ga. 452] This Court recently addressed another one of Appellant's motions for an out-of-time appeal in Wetherington v. State, 295 Ga. 172 (758 S.E.2d 299) (2014). In that opinion, we set forth the background of Appellant's case as follows:

On July 27, 1986, Wetherington[, who had retained counsel,] pled guilty to malice murder, attempted armed robbery, and attempted kidnapping; he was sentenced to serve life in prison for the murder and consecutive ten-year sentences for the two other convictions.
Wetherington did not file a timely direct appeal. However, over the ensuing two decades, acting pro se, he has filed an unsuccessful habeas corpus petition, two unsuccessful motions to vacate his sentence, and five motions for an out-of-time direct appeal. He filed his first motion for an out-of-time appeal in December 2008. After that motion was denied by the trial court, Wetherington filed a timely notice of appeal on January 20, 2009. For reasons not explained in the record, however, the Lowndes County Clerk's office did not transmit the notice of appeal and the record to this Court as directed, even after Wetherington wrote to the clerk's office in November 2009 to advise that this Court had not received the record and again requested that the clerk forward it. There is also no indication in the record that the appeal was ever withdrawn or dismissed.
In August 2010, Wetherington filed a second motion for an out-of-time appeal, which was denied in November 2010; he again filed a timely notice of appeal, but the clerk's office again failed to transmit it and the record to this Court. Wetherington filed two more motions for an out-of-time appeal, in September 2012 and March 2013, which apparently have not been ruled on by the trial court. On June 24, 2013, he filed his fifth motion for an out-of-time appeal, which was denied by the trial court in an order entered on September 18, 2013.

Id. at 172-173. Wetherington appealed the denial of his fifth motion for an out-of-time appeal, and this Court reversed the trial court's ...


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