O.C.G.A. § 5-7-2 (2019)

Annotations

Cross references. - Review of orders,

decisions, or judgments not subject to direct appeal, § 5-6-34(b). Editor’s notes. - Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall apply to offenses which occur on or after July 1, 2012. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act. Ga. L. 2013, p. 222, § 21/HB 349, not codified by the General Assembly, provides: ‘‘This Act shall become effective on July 1, 2013, and shall apply to offenses which occur on or after that date. Any

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APPEAL OR CERTIORARI - CRIMINAL CASES

offense occurring before July 1, 2013, shall be governed by the statute in effect at the time of such offense.’’ Law reviews. - For article on the

2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012). For annual survey on criminal law, see 64 Mercer L. Rev. 83 (2012).

JUDICIAL DECISIONS State’s right of appeal in criminal cases is strictly construed. - The General Assembly having placed in § 5-7-1 specific conditions upon appeals by state in criminal cases, Court of Appeals will not by judicial construction extend right of appeal beyond these instances, especially where intent is expressed to limit state to appeals under this chapter. State v. Hollomon, 132 Ga. App. 304, 208 S.E.2d 167 (1974). Upon an appeal by the state from an order granting the defendant a new trial, because the state failed to obtain a certificate of immediate review pursuant to O.C.G.A. § 5-7-2, the state’s attempted appeal was nugatory and did not activate the appellate jurisdiction of the Supreme Court of Georgia. Accordingly, that appeal was dismissed. State v. Ware, 282 Ga. 676, 653 S.E.2d 21 (2007). Because a trial court’s order denying defendant’s special demurrer was not a final order, and because an O.C.G.A. § 5-7-2 certificate of immediate review was not issued, the Court of Appeals lacked jurisdiction under O.C.G.A. § 5-7-1 to affirm the trial court’s order. State v. Outen, 289 Ga. 579, 714 S.E.2d 581 (2011). Motion to dismiss accusation not final judgment. - Where defendant was charged with abandoning his two minor children and filed a motion to dismiss the accusation, asserting general grounds, the trial court properly denied the motion to dismiss, because defendant did not comply with the interlocutory appeal procedure prescribed by subsection O.C.G.A. § 5-6-34(b); the overruling of defendant’s motion to dismiss the accusation, leaving the case pending for trial, was not a final judgment from which appeal could be taken, absent a certificate of immediate review. Boyd v. State, 191 Ga. App. 435, 383 S.E.2d 906 (1989). Sustaining of motion to suppress evidence illegally seized authorizes di-

rect appeal by state. State v. Smalley, 138 Ga. App. 747, 227 S.E.2d 488 (1976). Interlocutory orders. - The enactment of O.C.G.A. § 5-6-34(b) which changed the method by which interlocutory orders are appealed made no essential modification of the principal effect of this section. State v. Blosfield, 165 Ga. App. 111, 299 S.E.2d 588 (1983). Failure to obtain required certificate. - Because the former version of O.C.G.A. § 5-7-2, which was then in effect, required the state to obtain a certificate within ten days of the entry of an order granting a new trial and the state did not obtain the required certificate, the state did not have a right to file a direct appeal under O.C.G.A. § 5-7-1(a)(7). State v. Caffee, 291 Ga. 31, 728 S.E.2d 171 (2012). State’s appeal of an order granting the defendant’s motion for new trial was dismissed because O.C.G.A. § 5-7-2 required the state to obtain a certificate of immediate review to appeal the entry of the order granting a new trial, but the state did not obtain the required certificate. State v. Caffee, 291 Ga. 31, 728 S.E.2d 171 (2012). State may not waive defendant’s failure to obtain certificate. - Defendant’s failure to obtain the certificate of immediate review of the trial court’s judgment notwithstanding a mistrial would result in a dismissal of appeal even where the state would voluntarily waive any objection regarding the departure from the appeal procedure. Blackburn v. State, 169 Ga. App. 498, 314 S.E.2d 244 (1984); State v. Strain, 177 Ga. App. 874, 341 S.E.2d 481 (1986). Dismissal of petition for writs of mandamus and prohibition. - In an original action brought before the Supreme Court of Georgia, the Court dismissed a petition for writs of mandamus and prohibition filed by a prosecutor regarding a criminal prosecution as the prosecutor was not entitled to use the

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writs to circumvent the statutory limitations on the State’s ability to appeal under O.C.G.A. §§ 5-7-1 and 5-7-2. Howard v. Fuller, No. S08O0357, 2007 Ga. LEXIS 873 (Nov. 30, 2007). Cited in State v. Boswell, 131 Ga. App. 657, 206 S.E.2d 682 (1974); State v. Roberts, 133 Ga. App. 206, 210 S.E.2d 387

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(1974); State v. Johnson, 282 Ga. App. 102, 637 S.E.2d 825 (2006); State v. Sammons, 283 Ga. 364, 659 S.E.2d 598 (2008); State v. Felton, 297 Ga. App. 35, 676 S.E.2d 434 (2009); Cmty. State Bank v. Strong, 651 F.3d 1241 (11th Cir. 2011); State v. Wofford, No. A12A2296, 2013 Ga. App. LEXIS 219 (Mar. 19, 2013).

RESEARCH REFERENCES C.J.S. - 24 C.J.S., Criminal Law, § 2342 et seq.