Martin Canty v. State

Court of Appeals
of the State of Georgia

ATLANTA,____________________
May 13, 2026

The Court of Appeals hereby passes the following order:

A26A1901. MARTIN CANTY v. THE STATE.

In 2008, a jury found Martin Canty guilty of committing aggravated sexual
battery and child molestation against his four-year-old step-granddaughter, for which
he was sentenced to serve a total of 25 years in prison. On appeal from the denial of
Canty’s motion for a new trial, this Court affirmed his convictions. Canty v. State, 318
Ga. App. 13 (733 SE2d 64) (2012).1 Since that time Canty has filed multiple motions,
including a motion in arrest of judgment and motions to vacate or modify his
sentence.2 In March 2026, Canty filed a motion for leave to file an out-of-time motion
for a new trial. The trial court dismissed that motion, and Canty filed this direct
appeal. We lack 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.
In response, the legislature enacted OCGA § 5-6-39.1, which became effective on May

1
The remittitur was sent on October 12, 2012.
2
See Case Nos. A19D0394 (Apr. 16, 2019) (dismissing untimely discretionary
application from motion to vacate sentence); A22A0451 (Mar. 25, 2022) (affirming
dismissal of motion in arrest of judgment); A24D0389 (Jul. 9, 2024) (dismissing
untimely discretionary application from order partially vacating and amending his
sentence); A25A0782 (Jan. 20, 2025) (dismissing direct appeal of order partially
vacating and amending his sentence as abandoned); A25A2115 (Mar. 9, 2026)
(dismissing appeal and second attempt to challenge his amended sentence).
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. OCGA § 5-6-39.1(b). However, OCGA § 5-6-39.1(b) does not apply here,
as Canty did not file his motion for out-of-time motion for new trial within 100 days
from the expiration of the time period for filing a motion for new trial, nor did he have
his motion or appeal dismissed under Cook.
Moreover, the remedies under OCGA § 5-6-39.1 are not available to Canty
because he has already had a direct appeal. Richards v. State, 275 Ga. 190, 191 (563
SE2d 856) (2002) (a criminal defendant whose conviction has been affirmed on direct
appeal has no right of direct appeal from the denial of a motion for an out-of-time
appeal); see also Milliken v. Stewart, 276 Ga. 712, 713 (583 SE2d 30) (2003). Instead,
such a defendant “may gain further appellate review of the judgment of conviction by
filing an extraordinary motion for new trial or a petition for writ of habeas corpus.”
Richards, 275 Ga. at 192 n.1.
For the above reasons, this Court lacks jurisdiction over this appeal, which is
hereby DISMISSED.

Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
05/13/2026
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.