Gable v. State, 290 Ga. 81

1995: jury convicts Gable of rape, aggravated sodomy, aggravated child molestation, and six counts of child molestation; direct appeal affirmed.
October 2008: pro se extraordinary motion for new trial filed based on alleged victim recantation.
November 2008–July 2009: trial court appoints public defender; extraordinary motion for new trial denied; counsel files notice of appeal.
Court of Appeals dismisses direct appeal for failure to follow discretionary appeal procedure under OCGA § 5-6-35.
December 2009: Gable files an out-of-time discretionary appeal motion in trial court; trial court grants; he pursues discretionary appeal in Court of Appeals; Court of Appeals dismisses for lack of timely filing; Georgia Supreme Court grants certiorari.
The issue presented centers on whether trial court authority exists to grant an out-of-time discretionary appeal and the proper application of statutory time extensions under OCGA § 5-6-39.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether OCGA § 5-6-39 authorizes extensions for discretionary applications	Gable argues extensions may be granted under § 5-6-39(a)(5) to file a discretionary application	State contends extensions for discretionary applications are not authorized	Extensions may be granted under § 5-6-39(a)(5) but not here due to timeliness and filing locus constraints
Whether a trial court may grant an out-of-time discretionary appeal	Gable relies on § 5-6-39 to obtain relief due to counsel's failure	State argues only appellate courts may receive discretionary applications; trial court cannot grant extension	Trial court cannot grant the extension; the extension must be sought in the appellate court; nonetheless, the extension here was ineffective due to timing
Whether there is a constitutional right to counsel to pursue discretionary appeals after direct appeal	Gable asserts ineffective assistance of counsel in failing to pursue timely discretionary appeal	State and Court reject any constitutional right to counsel for post-conviction discretionary appeals	No constitutional right to counsel for pursuing discretionary state appeals after direct appeal

Cody v. State, 277 Ga. 553 (2004) (absolute requirement to file timely notice of appeal; jurisdictional focus)
Gulledge v. State, 276 Ga. 740 (2003) (deadline compliance is jurisdictional for appeals)
Legare v. State, 269 Ga. 468 (1998) (deadline compliance is jurisdictional for appeals)
Rowland v. State, 264 Ga. 872 (1995) (ineffective assistance can justify out-of-time direct appeal to avoid constitutional violation)
Evitts v. Lucey, 469 U.S. 387 (1985) (due process requires remedy when counsel's failures affect first appeal of right)
Murrell v. Young, 285 Ga. 182 (2009) (no constitutional right to counsel for post-conviction extraordinary motions)