Cain v. State

Because Cain was convicted by a jury, he had an absolute right to file a timely direct appeal. Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996). Compare Wheeler v. State, 269 Ga. 547 (499 SE2d 629) (1998) (guilty plea); Syms v. State, 240 Ga. App. 440 (1) (523 SE2d 42) (1999) (guilty plea). However, he did not do so. Instead, he filed a motion for an out-of-time appeal which was untimely because it was premature. According to the majority, “Cain’s motion for out of time appeal should be deemed as the functional equivalent of a notice of appeal. . . .” Majority opinion, p. 786. In my opinion,…