Rafael Santana, Jr. v. State

Court of Appeals
of the State of Georgia

ATLANTA,____________________
March 31, 2026

The Court of Appeals hereby passes the following order:

A26A1416. RAFAEL SANTANA, JR. v. THE STATE.

On November 16, 2021, after Rafael Santana, Jr., pled guilty to voluntary
manslaughter and possession of a knife during the commission of a felony, the trial
court sentenced him to a total of 25 years. On August 22, 2025, Santana filed a motion
for leave to file an out-of-time appeal. On November 17, 2025, the trial court denied
Santana’s motion, finding that he had missed the 30-day deadline for filing a notice
of appeal under OCGA § 5-6-38(a) and the 100-day deadline for filing an out-of-time
motion under OCGA § 5-6-39.1. Santana then filed this appeal. This Court, however,
lacks jurisdiction.
In Cook v. State, 313 Ga. 471, 506(5) (870 SE2d 758) (2022), the Supreme Court
of Georgia determined that a trial court lacks authority to grant an out-of-time appeal,
and that any remedy involving an out-of-time appeal must be sought in habeas corpus.
There, the Supreme Court vacated the trial court’s order denying the defendant’s
motion for out-of-time appeal and remanded with instructions to dismiss the motion.
Id. In response, the legislature enacted OCGA § 5-6-39.1, which became effective on
May 14, 2025. This statute allows for defendants to seek out-of-time relief if (1) the
defendant moves for leave to file an out-of-time motion for new trial or notice of
appeal within 100 days from the expiration of the time period for the filing of such
motion or notice, or (2) the defendant had an out-of-time motion or appeal dismissed
under Cook.
Here, OCGA § 5-6-39.1 does not apply to Santana because he neither filed a
motion for out-of-time appeal within 100 days from the expiration of the time period
for filing a notice of appeal nor had a motion for out-of-time appeal dismissed under
Cook.1 Because Santana is not entitled to pursue out-of-time relief, the propriety of the
trial court’s ruling on his request for an out-of-time appeal is moot. See Carlock v.
Kmart Corp., 227 Ga. App. 356, 361(3)(a) (489 SE2d 99) (1997) (a moot issue is one
where a ruling is sought on a matter that has no practical effect on the alleged
controversy or where the issues have ceased to exist); see also Ferguson v. State, 197
Ga. App. 443, 443(2) (398 SE2d 738) (1990).
Accordingly, this appeal is hereby DISMISSED. See OCGA § 5-6-48(b)(3)
(providing for dismissal of an appeal when the questions presented have become
moot).

Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
03/31/2026
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.

1
The provisions of OCGA § 5-6-35(a)(5.3), which require a discretionary
application for direct appeals from guilty pleas, do not apply to Santana since his guilty
plea was entered before the statute’s effective date of May 14, 2025. See Clark v.
State, 378 Ga. App. 111, n.1 (924 SE2d 346) (2025).