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restoration of civil and political rights); Smith v. State, 263 Ga.App. 414, 415(1) (587 S.E.2d 787) (2003) (defendant made strategic election to pursue motion in arrest of judgment rather than direct appeal); Bryant v. State, 257 Ga.App. 141 (570 S.E.2d 422) (2002) (defendant not entitled to seek second grant of out-of-time appeal when he failed to pursue the grant of his first motion diligently). Accordingly, the trial court erred in focusing on the timing of Hudson’s effort to obtain an out-of-time appeal, rather than resolving the determinative issue of whether the initial failure to pursue a timely direct appeal was attributable to trial counsel or to the defendant himself. Therefore, the judgment is reversed and the case is remanded with direction that the trial court ‘conduct the requisite inquiry as to who ultimately bore the responsibility for the failure to file a timely appeal.’ (Emphasis omitted.) Eisele v. State, 238 Ga.App. 289, 290 (519 S.E.2d 9) (1999).” Accord, Floyd v. State , 279 Ga.App. 21, 630 S.E.2d 168 (April 18, 2006) (defendant waited 13 years after getting transcript to pursue appeal); Walsh v. State , 302 Ga.App. 461, 691 S.E.2d 320 (February 23, 2010) (mere passage of time did not show waiver). Brooks v. State, 267 Ga.App. 663, 600 S.E.2d 737 (June 3, 2004). “‘[T]he grant of an out-of-time appeal constitutes permission to pursue appropriate post-conviction remedies, including a motion for new trial. It follows from that holding and from the requirement that a claim of ineffective assistance of counsel be determined by means of an evidentiary hearing at the earliest practicable moment, that a claim of ineffective assistance of counsel may not be asserted in an out- of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of an out-of-time appeal, in which the issue is raised and resolved by means of an evidentiary hearing.’ Ponder v. State, 260 Ga. 840, 841-842(1) (400 S.E.2d 922) (1991).” Dykes v. State, 266 Ga.App. 635, 597 S.E.2d 468 (March 12, 2004). Trial court was not required to hold evidentiary hearing on defendant’s motion for out-of-time appeal where “the record demonstrates sufficient evidence to conclude that Dykes ‘by his own conduct has slept on his rights’ [cit.]” and thus waived his right to direct appeal. Despite his assertion that he directed counsel to appeal his conviction, the record shows that he took no action whatever to secure his appeal rights for sixteen years, and then only because he was threatened with recidivist sentencing on new charges; but that in the interim he sought sentence review, early parole, and restoration of his civil and political rights. “While the mere passage of time would not preclude a defendant from pursuing an out-of-time appeal, we find that under the specific facts of this case, including Dykes’s efforts to seek other remedies such as the restoration of his civil and political rights, Dykes has waived this remedy,” citing Smith (September 11, 2003), below. But see Hudson (September 27, 2004), above. White v. State, 277 Ga. 647, 594 S.E.2d 329 (March 8, 2004). “[A] defendant seeking an out-of-time appeal following a jury trial need only show that the procedural deficiency was due to counsel’s failure to perform his duties. Rowland v. State, [264 Ga. 872, 875-876, 452 S.E.2d 756 (1995)]; Cannon v. State, 175 Ga.App. 741, 742 (334 S.E.2d 342) (1985). He need not point to the record and set out the issues he would raise on appeal. One whose right to appeal has been frustrated should not be treated differently from any other [defendant]; he should not be given an additional hurdle to clear just because his right to appeal was violated earlier. Rodriquez v. United States, 395 U.S. 327, 330 (89 S.Ct. 1715, 23 L.Ed.2d 340) (1969). ‘[I]t is unfair to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit before any advocate has ever reviewed the record in his case in search of potentially meritorious grounds for appeal.’ Roe v. Flores-Ortega, [528 U.S. 470, 486, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000)].” Reverses 261 Ga.App. 866, 584 S.E.2d 5 (2003). Cody v. State, 277 Ga. 553, 592 S.E.2d 419 (February 2, 2004). Out-of-time appeal was granted, but defendant then failed to file notice of appeal within 30 days. Trial court then entered order extending time to file notice of appeal. Held, “the trial court was without statutory authorization to grant an extension of time in excess of that permitted by OCGA § 5- 6-39(c). [Cits.]” Instead, trial court should have entertained another motion for out-of-time appeal, and considered whether the delay was caused by defendant or his counsel. Appeal dismissed. Kane v. State, 265 Ga.App. 250, 593 S.E.2d 711 (January 21, 2004). “‘A defendant moving for an out-of-time appeal following a conviction and sentence based on a guilty plea bears the burden of showing two things: first, that he or she actually had a right to file a timely direct appeal; and second, that the right of appeal was frustrated by the ineffective assistance of counsel.’ [Cit.] The second question is moot if the defendant did not have a right to file a direct appeal in the first place. [Cit.] A defendant has a right to file a timely direct appeal of a guilty plea only if the issue on appeal can be resolved by reference to facts on the record. [Cit.]” Defendant’s claim that his counsel didn’t inform him of his right to a direct appeal can’t be resolved by reference to facts contained in the record; therefore, he’s not entitled to an out-of-time appeal. Instead, defendant’s remedy, if any, is in a habeas corpus action. Also, defendant was not entitled to