(Ga. L. 1973, p. 297, § 1; Ga. L. 1984, p. 22, § 5; Ga. L. 1994, p. 311, § 1; Ga. L. 1994, p. 1012, § 28; Ga. L. 2000, p. 20, § 3; Ga. L. 2000, p. 862, § 2; Ga. L. 2003, p. 247, § 2; Ga. L. 2005, p. 20, § 3/HB 170; Ga. L. 2006, p. 379, § 3/HB 1059; Ga. L. 2012, p. 899, § 1-1/HB 1176; Ga. L. 2013, p. 141, § 5/HB 79; Ga. L. 2013, p. 222, § 1/HB 349; Ga. L. 2013, p. 294, § 4-2/HB 242; Ga. L. 2016, p. 883, § 3-13/HB 927.)
The 2012 amendment, effective July 1, 2012, deleted "superior" preceding "court" in paragraph (a)(7). See the editor's note for applicability.
The 2013 amendments. The first 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, substituted "the Court of Appeals and the Supreme Court" for "the Court of Appeals of Georgia and the Supreme Court of Georgia" in the introductory language of subsection (a). The second 2013 amendment, effective July 1, 2013, deleted "City Court of Atlanta," following "state courts," in the introductory paragraph of subsection (a); in paragraph (a)(1), inserted "a" preceding "petition" and inserted a comma following "act"; added paragraph (a)(5); redesignated former paragraphs (a)(5) through (a)(9) as present paragraphs (a)(6) through (a)(10), respectively; added "or subsection (b) of Code Section 17-7-50.1" at the end of paragraph (a)(7); and added subsection (c). See editor's note for applicability. The third 2013 amendment, effective January 1, 2014, substituted "Code Section 15-11-560" for "subparagraph (b)(2)(B) of Code Section 15-11-28" in former paragraph (a)(6) (now paragraph (a)(7)). See editor's note for applicability.
The 2016 amendment, effective January 1, 2017, substituted "Court of Appeals or the Supreme Court" for "Court of Appeals and the Supreme Court" in subsection (a). See Editor's notes for applicability.
Cross references.- Payment by state of bill of costs in appeals or applications filed on behalf of state by a district attorney, § 15-18-13.
Unified appeal, Uniform Superior Court Rules, Rule 34.
Code Commission notes.- Pursuant to Code Section 28-9-5, in 2013, in subsection (c), in the first sentence, "case" was substituted for "cases" and "in" was inserted preceding "Code Section 5-6-34" near the beginning.
Editor's notes.- Ga. L. 1994, p. 1012, § 1, not codified by the General Assembly, provides that the Act shall be known and may be cited as the "School Safety and Juvenile Justice Reform Act of 1994."
Ga. L. 1994, p. 1012, § 2, not codified by the General Assembly, sets forth legislative findings and determinations for the "School Safety and Juvenile Justice Reform Act of 1994."
Ga. L. 1994, p. 1012, § 29, not codified by the General Assembly, provides: "In the event any section, subsection, sentence, clause, or phrase of this Act shall be declared or adjudged invalid or unconstitutional, such adjudication shall in no manner affect the other sections, subsections, sentences, clauses, or phrases of this Act, which shall remain of full force and effect as if the section, subsection, sentence, clause, or phrase so declared or adjudged invalid or unconstitutional were not originally a part hereof. The General Assembly declares that it would have passed the remaining parts of this Act if it had known that such part or parts hereof would be declared or adjudged invalid or unconstitutional."
Ga. L. 2005, p. 20, § 1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Criminal Justice Act of 2005.'"
Ga. L. 2005, p. 20, § 17/HB 170, not codified by the General Assembly, provides that this Act shall apply to all trials which commence on or after July 1, 2005.
Ga. L. 2006, p. 379, § 1/HB 1059, not codified by the General Assembly, provides that: "The General Assembly finds and declares that recidivist sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Many sexual offenders are extremely likely to use physical violence and to repeat their offenses; and some sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. The General Assembly finds that this makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant. The General Assembly further finds that the high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:
"(1) Incarcerating sexual offenders and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space;
"(2) Requiring the registration of sexual offenders, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public;
"(3) Providing for community and public notification concerning the presence of sexual offenders;
"(4) Collecting data relative to sexual offenses and sexual offenders;
"(5) Requiring sexual predators who are released into the community to wear an electronic monitoring system for the rest of their natural life and to pay for such system; and
"(6) Prohibiting sexual predators from working with children, either for compensation or as a volunteer.
"The General Assembly further finds that the state has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual offenders to register and for requiring community and public notification of the presence of sexual offenders. The General Assembly declares that in order to protect the public, it is necessary that the sexual offenders be registered and that members of the community and the public be notified of a sexual offender's presence. The designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes. Likewise, the designation of a person as a sexual predator is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from findings by the Sexual Offender Registration Review Board and a court if requested by a sexual offender."
Ga. L. 2006, p. 379, § 30(c)/HB 1059, not codified by the General Assembly, provides that: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."
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 offense occurring before July 1, 2013, shall be governed by the statute in effect at the time of such offense."
Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."
Ga. L. 2016, p. 883, § 1-1/HB 927, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Appellate Jurisdiction Reform Act of 2016.'"
Ga. L. 2016, p. 883, § 6-1/HB 927, not codified by the General Assembly, provides that: "Part III of this Act shall become effective on January 1, 2017, and shall apply to cases in which a notice of appeal or application to appeal is filed on or after such date."
Law reviews.- For survey of cases dealing with criminal law and criminal procedure from June 1, 1977 through May 1978, see 30 Mercer L. Rev. 27 (1978). For article surveying appellate practice and procedure, see 34 Mercer L. Rev. 3 (1982). For annual survey of appellate practice and procedure, see 38 Mercer L. Rev. 47 (1986). For annual survey of appellate practice and procedure, see 43 Mercer L. Rev. 73 (1991). For annual survey of death penalty decisions, see 57 Mercer L. Rev. 139 (2005). For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 11 (2006). For survey article on criminal law, see 59 Mercer L. Rev. 89 (2007). For survey article on criminal law, see 60 Mercer L. Rev. 85 (2008). 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). For article, "Appeal and Error: Appeal or Certiorari by State in Criminal Cases," see 30 Ga. St. U.L. Rev. 17 (2013). For annual survey on criminal law, see 65 Mercer L. Rev. 79 (2013). For annual survey on criminal law, see 66 Mercer L. Rev. 37 (2014). For article on the 2016 amendment of this Code section, see 33 Georgia St. U.L. Rev. 205 (2016). For note on the 2003 amendment to this Code section, see 20 Ga. St. U.L. Rev. 119 (2003).
JUDICIAL DECISIONSANALYSIS
Section must be construed strictly against state in allowing appeals under specific conditions provided by General Assembly. State v. Clendinin, 136 Ga. App. 303, 221 S.E.2d 71 (1975), overruled on other grounds, 253 Ga. 287, 319 S.E.2d 864 (1984); State v. McIntyre, 191 Ga. App. 565, 382 S.E.2d 669 (1989); State v. Clark, 191 Ga. App. 923, 382 S.E.2d 670, cert. denied, State v. Clark, 191 Ga. App. 923, 382 S.E.2d 670; State v. Sosebee, 191 Ga. App. 725, 382 S.E.2d 681 (1989).
The General Assembly having placed in this section specific conditions upon appeals by state in criminal cases, the Court of Appeals will not by judicial construction extend the 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).
State's appeal from grant of motion to suppress.
- State's appeal from an order excluding the results of tests for alcohol was properly filed under O.C.G.A. § 5-7-1(a)(4). State v. Holt, 334 Ga. App. 610, 780 S.E.2d 44 (2015), cert. denied, No. S16C0462, 2016 Ga. LEXIS 179 (Ga. 2016).
Georgia Supreme Court held that the state may appeal a grant of the defendant's motion to suppress data on electronic devices properly seized during an arrest under O.C.G.A. § 5-7-1 (a)(4) because even under a strict construction of § 5-7-1(a)(4), the state has a direct right of appeal when the trial court grants a pre-trial motion to exclude evidence on the ground that the evidence was obtained illegally. State v. Rosenbaum, 305 Ga. 442, 826 S.E.2d 18 (2019).
State may appeal directly illegal judgment.
- Notwithstanding the provisions of this Code section, the state may appeal directly an illegal judgment. State v. Bilal, 192 Ga. App. 185, 384 S.E.2d 253 (1989); State v. Mohamed, 203 Ga. App. 21, 416 S.E.2d 358 (1992); State v. James, 211 Ga. App. 149, 438 S.E.2d 399 (1993).
State is authorized to appeal a void sentence pursuant to O.C.G.A. § 5-7-1(a)(5), and the state's appeals are governed by the same time limitations as those applied to other appellants in criminal cases, pursuant to O.C.G.A. § 5-7-4. State v. Jones, 265 Ga. App. 493, 594 S.E.2d 706 (2004).
In the absence of express statutory authority requiring the state to file a motion to amend an improper sentence as a prerequisite to appealing that sentence, the state may appeal directly the sentence imposed by the trial court or file a motion to amend the sentence and then directly appeal the denial thereof, but in any event, the state has 30 days from judgment or from the denial of the motion to amend to file its notice of appeal; however, should the defendant file a motion for new trial, that motion tolls the time within which the state can directly appeal the sentence, and in that case, the state has 30 days from the denial of the motion for new trial to appeal the alleged improper sentence. State v. Jones, 265 Ga. App. 493, 594 S.E.2d 706 (2004).
State had no right to appeal from no contest plea.
- Trial court's order vacating guilty plea and entering a plea of no contest in its stead was not an order from which the state could appeal under O.C.G.A. § 5-7-1. The order at issue merely vacated the defendant's guilty plea and substituted a no contest plea in its place, and the state had no right to appeal from such an order. State v. Hill, 321 Ga. App. 759, 743 S.E.2d 448 (2013).
Direct appeal available for denial of bail.
- When a defendant's case is at an appellate stage and will not return to a pretrial stage unless and until the Georgia Supreme Court affirms the grant of new trial, during the state's appeal, the defendant's case cannot be considered to be pending in the court below; thus, the denial of a defendant's motion for appeal bond is directly appealable by the defendant. Johnson v. State, 304 Ga. 369, 818 S.E.2d 601 (2018).
Order compelling return of seized property to defendant.
- State could not appeal from order compelling the return of seized property to defendant, where the state stipulated it would not use the property at issue in the trial of the charges pending against defendant, and the state did not challenge the trial court's ruling on defendant's motion to suppress. State v. McIntyre, 191 Ga. App. 565, 382 S.E.2d 669 (1989).
State may not appeal grant of new trial.
- Where, at the close of the defendant's evidence, the court volunteered that in its opinion the state had failed to prove the criminal trespass charge and that, if the jury returned a verdict of guilty, the court would either "set that judgment aside" or "grant a motion for new trial instantly" if defendant requested one on that basis and, immediately following return of the verdicts, the court stated that it was granting "a new trial" on the criminal trespass charge, the court effectively acquitted defendant. Even if the order had been a proper grant of new trial, it would not have been appealable by the State, as it is not encompassed in § 5-7-1. State v. Seignious, 197 Ga. App. 766, 399 S.E.2d 559 (1990).
Defendant properly granted new trial.
- Upon the state's appeal pursuant to O.C.G.A. § 5-7-1(a)(7), as amended in 2005, the appeals court found that the defendant was properly granted a new trial based on the ineffective assistance of trial counsel, given counsel's failure to interview any of the state's witnesses, present a viable defense to the charge of involuntary manslaughter, and adequately investigate whether the victim's death might have been an accident. State v. McMillon, 283 Ga. App. 671, 642 S.E.2d 343 (2007).
After the defendant was found guilty of felony murder and other crimes in connection with the shooting death of the defendant's ex-spouse, the trial court properly exercised the court's discretion to grant the defendant a new trial on the general grounds because the court concluded that the jury's guilty verdicts were decidedly and strongly against the weight of the evidence and contrary to the principles of justice and equity; and the supreme court would not disturb the first grant of a new trial based on the general grounds unless the trial court abused the court's discretion in granting it and the law and the facts demanded the verdict rendered. State v. Hamilton, 299 Ga. 667, 791 S.E.2d 51 (2016).
State could not appeal denial of motion to recuse.
- Trial court's order denying the state's motion to recuse the judge in a criminal case was not reviewable pursuant to O.C.G.A. § 5-7-1(a)(9) because the state failed to obtain a certificate of immediate review from the trial court and failed to obtain permission to file an interlocutory appeal from the court as required by O.C.G.A. § 5-7-2. State v. Osborne, 330 Ga. App. 688, 769 S.E.2d 115 (2015).
Order striking immaterial allegation of accusation could not be appealed by the state. State v. Phillips, 206 Ga. App. 421, 425 S.E.2d 412 (1992).
The state cannot circumvent this section and create avenues for appeal by requesting a trial court convert an adverse evidentiary ruling into a motion to quash the indictment and then appeal the adverse ruling that it requested. State v. Land-O-Sun Dairies, Inc., 204 Ga. App. 485, 419 S.E.2d 743 (1992).
A revocation of probation hearing.
- Appeal by the state from the grant of probationer's motion to suppress was dismissed since a revocation of probation hearing is not a criminal proceeding for purposes of a direct appeal; jurisdiction would lie upon application only. State v. Wilbanks, 215 Ga. App. 223, 450 S.E.2d 293 (1994).
Court of Appeals lacked jurisdiction.
- The Court of Appeals was without jurisdiction to entertain the state's appeal of a dismissal of a juvenile court petition. In re J.H., 228 Ga. App. 154, 491 S.E.2d 209 (1997).
Because the state, in the person of the district attorney, attempted to avoid the restrictions in O.C.G.A. § 5-7-1 et seq., by attacking by way of mandamus and prohibition an alleged magistrate court policy concerning rulings made in criminal prosecutions, and because the state had no ability to appeal the policy, the trial court erred by considering the state's petition for mandamus and prohibition. Magistrate Court v. Fleming, 284 Ga. 457, 667 S.E.2d 356 (2008).
Because the defendant did not file either a cross-appeal to the state's appeal or a separate notice of appeal regarding the superior court's adverse rulings on the other alleged violations of the statute regarding the presiding judge's allegedly improper questioning of the defendant, the appellate court lacked jurisdiction to consider the defendant's allegations of error arising from the superior court's adverse rulings. State v. Nickerson, 324 Ga. App. 576, 749 S.E.2d 768 (2013).
Supreme court lacked jurisdiction.
- State's appeal of an order granting the defendant's motion for new trial was dismissed because the supreme court lacked jurisdiction to consider the state's appeal; the state had no 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).
No jurisdiction to grant extraordinary motion for a new trial.
- An extraordinary motion for new trial is not among those statutorily enumerated circumstances in which the state may challenge a judgment in a criminal case, therefore, the trial court was without jurisdiction to entertain the state's motion or to grant the requested relief. Moody v. State, 272 Ga. 55, 525 S.E.2d 360 (2000).
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 writs to circumvent the statutory limitations on the state's ability to appeal under O.C.G.A. §§ 5-7-1 and5-7-2. Howard v. Fuller, Ga. , S.E.2d (Nov. 30, 2007).
State not prohibited from appeal.
- Defendant's speedy trial motion did not prohibit the state from exercising the state's right to appeal. State v. Watson, 354 Ga. App. 263, 840 S.E.2d 641 (2020).
Cited in State v. David, 130 Ga. App. 872, 204 S.E.2d 773 (1974); State v. Ogles, 133 Ga. App. 802, 213 S.E.2d 60 (1975); State v. Houston, 134 Ga. App. 36, 213 S.E.2d 139 (1975); Potts v. State, 236 Ga. 230, 223 S.E.2d 120 (1976); State v. McCranie, 137 Ga. App. 369, 223 S.E.2d 765 (1976); State v. Moore, 237 Ga. 269, 227 S.E.2d 241 (1976); State v. Rowe, 138 Ga. App. 904, 228 S.E.2d 3 (1976); State v. Foster, 141 Ga. App. 258, 233 S.E.2d 215 (1977); State v. Holmes, 142 Ga. App. 847, 237 S.E.2d 406 (1977); State v. Strickland, 144 Ga. App. 128, 240 S.E.2d 579 (1977); State v. White, 145 Ga. App. 730, 244 S.E.2d 579 (1978); State v. Bowen, 145 Ga. App. 790, 245 S.E.2d 10 (1978); State v. Willis, 149 Ga. App. 509, 254 S.E.2d 743 (1979); Adult Bookmart, Inc. v. State, 152 Ga. App. 838, 264 S.E.2d 273 (1979); State v. Benton, 154 Ga. App. 141, 267 S.E.2d 775 (1980); State v. Brannon, 154 Ga. App. 285, 267 S.E.2d 888 (1980); State v. Williams, 157 Ga. App. 393, 278 S.E.2d 499 (1981); State v. Izquierdo, 160 Ga. App. 33, 285 S.E.2d 769 (1981); State v. Bigler, 160 Ga. App. 225, 286 S.E.2d 758 (1981); Parrish v. State, 160 Ga. App. 601, 287 S.E.2d 603 (1981); State v. Hopkins, 163 Ga. App. 141, 293 S.E.2d 529 (1982); State v. Chumley, 164 Ga. App. 828, 299 S.E.2d 564 (1982); State v. Allen, 165 Ga. App. 86, 299 S.E.2d 158 (1983); State v. Gardner, 254 Ga. 264, 328 S.E.2d 546 (1985); State v. Thomas, 176 Ga. App. 106, 335 S.E.2d 697 (1985); State v. Harris, 256 Ga. 24, 343 S.E.2d 483 (1986); State v. Howell, 180 Ga. App. 449, 349 S.E.2d 476 (1986); Doe v. State, 185 Ga. App. 347, 364 S.E.2d 78 (1987); State v. Eaves, 185 Ga. App. 740, 365 S.E.2d 535 (1988); State v. Richardson, 186 Ga. App. 888, 368 S.E.2d 825 (1988); State v. Greenwood, 206 Ga. App. 188, 424 S.E.2d 870 (1992); Brooks v. State, 206 Ga. App. 485, 425 S.E.2d 911 (1992); In re R.J.C., 210 Ga. App. 286, 435 S.E.2d 759 (1993); State v. Schuman, 212 Ga. App. 231, 441 S.E.2d 466 (1994); State v. Williams, 212 Ga. App. 164, 441 S.E.2d 501 (1994); State v. Crank, 212 Ga. App. 246, 441 S.E.2d 531 (1994); State v. Levins, 235 Ga. App. 739, 507 S.E.2d 246 (1998); State v. Levins, 235 Ga. App. 739, 507 S.E.2d 246 (1998); State v. Alexander, 245 Ga. App. 666, 538 S.E.2d 550 (2000); State v. Murphy, 246 Ga. App. 246, 540 S.E.2d 231 (2000); State v. Ware, 258 Ga. App. 564, 574 S.E.2d 632 (2002); State v. Smith, 276 Ga. 14, 573 S.E.2d 64 (2002); State v. Allen, 262 Ga. App. 724, 586 S.E.2d 378 (2003); State v. Lowe, 263 Ga. App. 1, 587 S.E.2d 169 (2003); State v. Glass, 279 Ga. 696, 620 S.E.2d 371 (2005); Pierce v. State, 278 Ga. App. 162, 628 S.E.2d 235 (2006); State v. Hardy, 281 Ga. App. 365, 636 S.E.2d 36 (2006); State v. Johnson, 282 Ga. App. 102, 637 S.E.2d 825 (2006); State v. Austell, 285 Ga. App. 18, 645 S.E.2d 550 (2007); State v. Lamb, 287 Ga. App. 389, 651 S.E.2d 504 (2007); Kramer v. State, 287 Ga. App. 796, 652 S.E.2d 843 (2007), cert. denied, 2008 Ga. LEXIS 289 (Ga. 2008); State v. Pye, 282 Ga. 796, 653 S.E.2d 450 (2007), overruled on other grounds by State v. Abbott, 303 Ga. 297, 812 S.E.2d 255 (2018); State v. Sammons, 283 Ga. 364, 659 S.E.2d 598 (2008); State v. O'Neal, 292 Ga. App. 884, 665 S.E.2d 926 (2008); State v. Jones, 284 Ga. 302, 667 S.E.2d 76 (2008); State v. Felton, 297 Ga. App. 35, 676 S.E.2d 434 (2009); State v. Jeffries, 298 Ga. App. 141, 679 S.E.2d 368 (2009); State v. Burks, 285 Ga. 781, 684 S.E.2d 269 (2009); State v. Corhen, 306 Ga. App. 495, 700 S.E.2d 912 (2010); Tyner v. State, 289 Ga. 592, 714 S.E.2d 577 (2011); Ellington v. State, 292 Ga. 109, 735 S.E.2d 736 (2012), overruled in part by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018); State v. James, 292 Ga. 440, 738 S.E.2d 601 (2013); State v. Mosley, 321 Ga. App. 236, 739 S.E.2d 106 (2013), overruled on other grounds by State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019); State v. Nicholson, 321 Ga. App. 314, 739 S.E.2d 145 (2013); State v. Wakefield, 324 Ga. App. 587, 751 S.E.2d 199 (2013); State v. Garlepp, 338 Ga. App. 788, 790 S.E.2d 839 (2016); Ga. Dep't of Juvenile Justice v. Eller, 338 Ga. App. 247, 789 S.E.2d 412 (2016); State v. Baxter, 300 Ga. 268, 794 S.E.2d 49 (2016); State v. Yohman, 348 Ga. App. 378, 823 S.E.2d 57 (2019); State v. Newman, 305 Ga. 792, 827 S.E.2d 678 (2019); State v. Banks, 348 Ga. App. 876, 825 S.E.2d 399 (2019); State v. Turnquest, 305 Ga. 758, 827 S.E.2d 865 (2019); State v. Green, 350 Ga. App. 238, 828 S.E.2d 635 (2019); State v. Richardson, 353 Ga. App. 368, 837 S.E.2d 524 (2020); DeLoach v. State, 308 Ga. 283, 840 S.E.2d 396 (2020); State v. Hamilton, 308 Ga. 116, 839 S.E.2d 560 (2020); DeLoach v. State, 308 Ga. 283, 840 S.E.2d 396 (2020); State v. Pauldo, Ga. , 844 S.E.2d 829 (2020).
Judgments Dismissing Indictment or Accusations
State may appeal order dismissing indictment even if order is entered during trial. State v. Williams, 246 Ga. 788, 272 S.E.2d 725 (1980).
State was entitled to appeal directly from the sustaining of defendant's special demurrer, because the sustaining of a special demurrer, the result of which is either to strike from or add to the material allegations of an indictment, is equivalent to sustaining a general demurrer and quashing the indictment. State v. Mendoza, 190 Ga. App. 831, 380 S.E.2d 357 (1989).
The state's appeal of an order directing a verdict of acquittal on charges against a defendant for family violence battery and cruelty to children was valid because the order was not based on the merits of the case but rather on the fact that the state could not prove any wrongdoing by the defendant on the date stated within the accusation; thus, the trial court's order was actually a dismissal of the accusation. State v. Swint, 284 Ga. App. 343, 643 S.E.2d 840 (2007).
The state was permitted to appeal a judgment of a trial court sustaining defendant's demurrer as, while the hearing transcript showed that the trial court considered granting defendant's motion for a directed verdict, the trial court's ultimate ruling was limited to sustaining the demurrer and, in effect, dismissing the accusation because of how the accusation was worded. When the ruling of the trial court is in substance a dismissal of the indictment, the state may appeal an order dismissing an indictment under O.C.G.A. § 5-7-1(a)(1). State v. Shabazz, 291 Ga. App. 751, 662 S.E.2d 828 (2008).
In the state's appeal, it was held that a trial court abused the court's discretion by dismissing an indictment against the defendant charging the defendant with felony theft by taking because the fact that it could take years before the defendant would be able to appear in court due to the defendant's immigration status did not provide any legal basis for dismissing the indictment. State v. Bachan, 321 Ga. App. 712, 742 S.E.2d 526 (2013).
Dismissal of state's appeal under O.C.G.A.
§ 5-6-48(c) upheld. - The trial court properly dismissed the state's appeal from an order barring the defendant's trial on speedy trial grounds, pursuant to O.C.G.A. § 5-6-48(c), as the order was not the type the state had a right to pursue under O.C.G.A. § 5-7-1; moreover, the order was not void, as it was entered by a court of competent jurisdiction. State v. Glover, 281 Ga. 633, 641 S.E.2d 543 (2007).
Transfer order was appealable by state.
- O.C.G.A. § 5-7-1(a)(1) granted the state the right to appeal in a criminal case from an order transferring a case from the state court to the recorder's court as the order effectively set aside or dismissed the state court accusation against defendant and precluded defendant's prosecution there; defendant's motion to dismiss the state's appeal of the order granting the motion to transfer was denied. State v. Serio, 257 Ga. App. 369, 571 S.E.2d 168 (2002).
Transfer order was not appealable by state.
- Juvenile court erred in finding that a juvenile case involving armed robbery with a firearm was subject to the transfer provisions delineated in O.C.G.A. § 15-11-30.2 because, under subsection (f) of that section, the transfer provisions did not apply in cases involving armed robbery with a firearm, which were subject to the exclusive jurisdiction of the superior court under O.C.G.A. § 15-11-28(b)(2)(A)(vii). However, because the juvenile court had concurrent jurisdiction to enter the judgment due to the state's filing a petition in the juvenile court, the state had no right to appeal from the petition pursuant to O.C.G.A. § 5-7-1(A)(5). In re D. L., 302 Ga. App. 234, 690 S.E.2d 522 (2010).
Authority to dismiss charge.
- Where a criminal case was called for trial, the court granted the state's motion for continuance and the case was then reset for trial, and the state was not ready to try the case on that date, the court properly dismissed the charges against the defendant. State v. Grimes, 194 Ga. App. 736, 392 S.E.2d 727 (1990).
Trial court's order quashing an indictment based solely on the failure to revise the grand jury list during the time period set forth in O.C.G.A. § 15-12-40(a)(1) was reversed, as the statute was not obligatory, but directory in nature, merely suggesting a timetable for grand jury lists to be revised; hence, the trial court's order was reversed. State v. Parlor, 281 Ga. 820, 642 S.E.2d 54 (2007).
Charge improperly dismissed.
- Because the defendant's alleged mistake of fact regarding a charge of possession of a firearm by a convicted felon required consideration of facts extrinsic to the accusation to be decided by a jury, the trial court erred in dismissing the charge, sua sponte; moreover, as such dismissal was not an adjudication of guilt, the state could appeal from the same without violating the defendant's double jeopardy rights. State v. Henderson, 283 Ga. App. 111, 640 S.E.2d 686 (2006).
At defendants' probation revocation hearings, a trial court erred when the court dismissed indictments in the three cases-in-chief for unavailability of evidence because the dismissals lacked a legal basis, such as failure to prosecute or due process violations, and thus interfered with the state's right to prosecute criminal cases. State v. Miller, 335 Ga. App. 700, 782 S.E.2d 803 (2016).
Judgments Sustaining Pleas in Bar
Discharge and acquittal based on denial of demand for trial.
- State may appeal trial court's grant of criminal defendant's motion for discharge and acquittal, where such motion is based on denial of defendant's demand for trial pursuant to § 17-7-170, as such motion constitutes a plea in bar. State v. Benton, 246 Ga. 132, 269 S.E.2d 470 (1980). But see State v. Clendinin, 136 Ga. App. 303, 221 S.E.2d 71 (1975).
Double Jeopardy
Determining questions of double jeopardy.
- Title 16 contains proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions. Therefore questions of double jeopardy in Georgia must now be determined under expanded statutory proscriptions: §§ 16-1-6,16-1-7 and16-1-8. State v. Warren, 133 Ga. App. 793, 213 S.E.2d 53 (1975).
State has a right to appeal the grant of a plea in bar based on double jeopardy. State v. Stowe, 167 Ga. App. 65, 306 S.E.2d 663 (1983).
O.C.G.A. § 5-7-1(a)(3) gave an appellate court authority to consider the State of Georgia's appeal with regard to the defendant's plea in bar contending that double jeopardy prohibited a second trial on the same charges. State v. Caffee, 291 Ga. 31, 728 S.E.2d 171 (2012).
Grant of plea in bar upheld.
- Trial court did not err by granting the defendant's motion for a plea in bar dismissing the charges of conversion of sales and use taxes, theft by taking, and false swearing against the defendant because the charges were not brought within four years of the dates on which the crimes were allegedly committed as required by O.C.G.A. § 17-3-1. State v. Crowder, 338 Ga. App. 642, 791 S.E.2d 423 (2016).
Judgment reversed.
- When a mother and daughter were charged with the murder of the daughter's boyfriend, the judgment sustaining the double jeopardy plea in bar on the basis of insufficient evidence in the first trial was reversed because there was evidence of a common criminal intent, including the women's presence, companionship, and conduct before and immediately after the fatal shooting. State v. Cash, 302 Ga. 587, 807 S.E.2d 405 (2017).
Orders Suppressing Evidence
Appeal permitted from pretrial exclusions.
- This Code section is not so limited in scope as to authorize the state to appeal only from the grant of a pretrial motion to suppress under O.C.G.A. § 17-5-30. If the defendant in a criminal case files any pretrial motion to exclude evidence on the ground that it was obtained in violation of law, the grant of such a motion may be appealed by the state. State v. McKenna, 199 Ga. App. 206, 404 S.E.2d 278 (1991).
In a robbery case, the state's direct appeal under O.C.G.A. § 5-7-1(a)(5) from an order excluding evidence of a similar robbery under O.C.G.A. § 24-4-404(b) was accepted because, although the trial court was not required to treat the state's pretrial notice of other crimes evidence as a motion under § 5-7-1(a)(5), the state complied with the provisions of the statute. An order excluding intrinsic evidence was not appealable because the pretrial notice did not cover intrinsic evidence. State v. Battle, 344 Ga. App. 565, 812 S.E.2d 1 (2018).
State appeal not allowed.
- Because the state failed to request that the trial court put an oral order of suppression in writing, and show that the trial court refused to do so, it did not have the right to appeal from said order; moreover, while the state could have filed a mandamus petition seeking to require the court to do put the oral order in writing, it did not seek said relief. State v. Morrell, 281 Ga. 152, 635 S.E.2d 716 (2006).
In a defendant's prosecution for drug possession, the state did not have the right to appeal under O.C.G.A. § 5-7-1(a)(4) from an oral ruling that suppressed the defendant's statements prior to the defendant's arrest at a stop scene for failure to give Miranda warnings because the transcript did not affirmatively show that the state requested the trial court to put the oral order in written form and that the trial court refused to do so. State v. Kipple, 294 Ga. App. 420, 669 S.E.2d 185 (2008).
Basis for suppression order.
- Paragraph (4) authorizes the state to bring a direct appeal only when the trial court's exclusion of evidence is based upon the determination that the state unlawfully obtained it, and not when the exclusion is based upon some general rule of evidence. State v. Brown, 185 Ga. App. 701, 365 S.E.2d 865 (1988); State v. Lavell, 214 Ga. App. 525, 448 S.E.2d 270 (1994).
Exclusion based upon general rule of evidence.
- An appeal from an order dismissing a case for lack of prosecution was not authorized where the order was the result of the exclusion of evidence based upon some general rule of evidence; reversing State v. Berky, 214 Ga. App. 174, 447 S.E.2d 147 (1994). Berky v. State, 266 Ga. 28, 463 S.E.2d 891 (1995).
"Evidence" is not necessarily physical or externally real.
- Paragraph (4) refers to "evidence," not "property," and "evidence" is not necessarily physical or externally real. State v. Watson, 143 Ga. App. 785, 240 S.E.2d 194 (1977).
State may appeal orders suppressing oral admissions, or written or tape recorded statements.
- State has right under section to appeal trial judge's order suppressing as evidence any oral admissions, written statements, or tape recordings of statements made to law enforcement officers while in custody. State v. Watson, 143 Ga. App. 785, 240 S.E.2d 194 (1977).
Motion, in whatever form, to exclude evidence appealable by state.
- If a defendant moves before trial to exclude evidence on the ground that it was obtained in violation of law, the grant of such a motion, whatever its name, is subject to direct appeal on the part of the state. Strickman v. State, 253 Ga. 287, 319 S.E.2d 864 (1984); State v. McCard, 173 Ga. App. 504, 326 S.E.2d 856 (1985); State v. Frye, 205 Ga. App. 508, 422 S.E.2d 915 (1992); State v. Peters, 213 Ga. App. 352, 444 S.E.2d 609 (1994).
Motion made and ruled on in mid-trial.
- A suppression motion which has been made and ruled upon in mid-trial is not an order which may be appealed by the state. State v. Lawrence, 208 Ga. App. 588, 431 S.E.2d 409 (1993).
Order enforcing pretrial diversion agreement.
- State's appeal of the order compelling the state to comply with the terms of a pretrial diversion agreement was dismissed as the appellate court lacked jurisdiction under O.C.G.A. § 5-7-1(a)(6) since the order was not void or § 5-7-1(a)(1) because that paragraph did not apply since the trial court's order did not dismiss the indictment; the court enforced the pretrial diversion agreement. State v. Rodriguez, 353 Ga. App. 345, 836 S.E.2d 738 (2019).
Decision to exclude testimony of intoximeter test.
- The state had no right of direct appeal from a decision by the trial court to exclude testimony regarding the results of an intoximeter test which had been administered to defendant at the time of his arrest, where the state failed to provide him with a copy of the test results. State v. Gosch, 179 Ga. App. 613, 347 S.E.2d 353 (1986).
Where defendant's pretrial motion did not seek the exclusion of any evidence on the ground that it had been obtained in violation of law, and the exclusion of intoximeter test results was based upon the trial court's finding of a material alteration thereof, paragraph (4) was not authority for the state to bring an appeal. State v. McKenna, 199 Ga. App. 206, 404 S.E.2d 278 (1991).
Deceased elderly victim's audio statement inadmissible.- During the prosecution of two defendants, who were charged with exploiting an elderly woman, the trial court properly deemed the audio recording of the elderly victim inadmissible because the defendants did not have an adequate opportunity to effectively cross-examine the elderly victim about her interview statements. State v. Hines, Ga. App. , S.E.2d (Aug. 5, 2020).
State appeal allowed.
- The state could appeal an order suppressing evidence that was based on general rules of evidence and on grounds that the evidence had been obtained in violation of law. State v. Pastorini, 226 Ga. App. 260, 486 S.E.2d 399 (1997).
Although the state may not appeal from an order excluding evidence on the basis only of some general rule of evidence, the state may appeal under O.C.G.A. § 5-7-1(a)(4) from an order, decision, or judgment suppressing or excluding evidence illegally seized, including orders that suppress evidence based both upon general rules of evidence and a determination that the evidence was illegally obtained; thus, where the basis for the trial court's order granting a defendant's suppression motion was not stated in the order, but the suppression motion itself was based both on the warrant being improper and on the evidence being inadmissible apart from the warrant issue, the state's appeal was authorized pursuant to O.C.G.A. § 5-7-1(a)(4). State v. Kramer, 260 Ga. App. 546, 580 S.E.2d 314 (2003).
After a trial court granted the defendant's suppression motion with respect to DNA evidence that was obtained pursuant to a search warrant, which the trial court found was not executed in compliance with statutory prerequisites, the state had a right to appeal that ruling directly pursuant to O.C.G.A. § 5-7-1(a)(4). State v. Stafford, 277 Ga. App. 852, 627 S.E.2d 802 (2006).
Because O.C.G.A. § 5-7-1(a)(4) afforded the state a direct right of appeal from an order granting suppression of the defendant's statement to law enforcement as involuntarily made, the defendant's motion to dismiss the state's appeal was denied. State v. Stanfield, 290 Ga. App. 62, 658 S.E.2d 837 (2008).
State's direct appeal of a judgment granting the defendant's motion to suppress evidence that the victims identified the defendant from photographic lineups was authorized by O.C.G.A. § 5-7-1(a)(4) because the state's direct appeal was from an order that: (1) was issued prior to the impaneling of a jury or the defendant being put in jeopardy; and (2) granted the defendant's motion to suppress evidence that was allegedly obtained in an illegal manner, and which the trial court deemed to be "meritorious" even apart from the prosecutor's supposed dilatory conduct. During the final hearing on the defendant's motion, the trial court refused to allow the state to present evidence to contest the motion as a means of sanctioning the state for prosecutorial conduct that the trial court deemed to be dilatory in nature, and the fact that the trial court was the direct cause of the state's inability to meet the state's burden of showing that the identifications were lawfully obtained in no way divested the court of appeals of jurisdiction to hear its appeal pursuant to § 5-7-1(a)(4). State v. Smith, 308 Ga. App. 345, 707 S.E.2d 560 (2011).
Final order of acquittal of all defendants was vacated because the state's pretrial notice of appeal of an evidentiary ruling was effective and deprived the trial court of jurisdiction to try the defendants pending resolution of the appeal; because the trial court lacked jurisdiction to proceed with a trial of the defendants, such proceedings were without legal effect and the directed verdicts of acquittal were void. State v. Brown, 333 Ga. App. 643, 777 S.E.2d 27 (2015).
Admission of videotape.
- In a prosecution for obstruction of a law enforcement officer and simple battery, suppression of a videotape on the ground that it did not capture the entire encounter between the officer and the defendant was error because the probative value of the videotape was not substantially outweighed by the danger of unfair prejudice to the defendant. State v. Forehand, 246 Ga. App. 590, 542 S.E.2d 110 (2000).
Suppression of evidence from sobriety checkpoint authorized.
- Appellate court erred by reversing a trial court decision granting the appellant's motion to suppress evidence resulting from a traffic safety checkpoint stop of appellant's vehicle because the checkpoint at which appellant was stopped was unconstitutional since the checkpoint did not meet the case law requirement that supervisory personnel made the decision to implement the checkpoint. Brown v. State, 293 Ga. 787, 750 S.E.2d 148 (2013).
Suppression of custodial statement evidence upheld.
- Appellate court affirmed the trial court's order granting the defendant's motion to suppress the custodial statement made to the detectives because asking to contact a girlfriend so the girlfriend could call the defendant's lawyer was a clear request for an attorney and the detectives should have ceased any further questioning. State v. Philpot, 299 Ga. 206, 787 S.E.2d 181 (2016).
Application Generally
Directed verdicts of acquittal are not appealable judgments. State v. Warren, 133 Ga. App. 793, 213 S.E.2d 53 (1975), rev'd on other grounds, 246 Ga. 788, 272 S.E.2d 725 (1980); State v. Williams, 155 Ga. App. 144, 270 S.E.2d 281 (1980).
The government may not appeal a trial court's grant to a criminal defendant of a directed verdict of acquittal based on insufficiency of evidence to support conviction, in that new trial would be barred by double jeopardy clause of fifth amendment. State v. Williams, 246 Ga. 788, 272 S.E.2d 725 (1980).
Trial court's determination that the state did not establish the essential elements of burglary constituted a directed verdict of acquittal on the merits, and the state could not appeal and subject defendants to a new trial on the merits. State v. Bryant, 182 Ga. App. 698, 356 S.E.2d 656 (1987).
State had no right to appeal in the case of an acquittal. State v. Fly, 193 Ga. App. 190, 387 S.E.2d 347, cert. denied, 193 Ga. App. 911, 387 S.E.2d 347 (1989).
No direct appeal in delinquency case.
- The statute only allows the state to appeal directly in criminal cases and not in a delinquency case, i.e., a civil case. In re D.Q.H., 212 Ga. App. 271, 441 S.E.2d 411 (1994).
No appeal from transfer order entered under O.C.G.A.
§ 17-7-50.1(b). - State could not appeal the transfer order entered under O.C.G.A. § 17-7-50.1(b) because O.C.G.A. § 17-7-50.1(b) did not speak of "setting aside," "dismissing," or taking any other action regarding an indictment returned against a juvenile. Instead, the provision directed that the juvenile's entire case be transferred to juvenile court if the 180-day charging deadline was not met. State v. Johnson, 292 Ga. 409, 738 S.E.2d 86 (2013).
Dismissal of charges before jeopardy attaches.
- Entry of a directed verdict of acquittal based on an insufficiency of the evidence to support the charge is not generally appealable by the state. An exception exists where the trial court dismisses charges on erroneous grounds before jeopardy attaches. State v. Vansant, 208 Ga. App. 772, 431 S.E.2d 708 (1993), aff'd in part and rev'd in part, 264 Ga. 319, 443 S.E.2d 474 (1994), vacated on other grounds, 214 Ga. App. 127, 447 S.E.2d 348 (1994).
Appellate jurisdiction not found.
- This court has declined to find appellate jurisdiction when the state appealed an order granting a defendant's motion in limine on general evidentiary grounds. State v. Land-O-Sun Dairies, Inc., 204 Ga. App. 485, 419 S.E.2d 743 (1992).
This section did not authorize the state to appeal from an order of the trial court merging various counts for sentencing. Gibbins v. State, 229 Ga. App. 896, 495 S.E.2d 46 (1998).
Under O.C.G.A. § 5-7-1, the State of Georgia was not authorized to appeal a trial court's ruling as to an anticipated jury charge. Height v. State, 278 Ga. 592, 604 S.E.2d 796 (2004).
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).
In a juvenile delinquency case, the court dismissed "the proceeding", not the petition and, thus, the state did not have authority to appeal and the appellate court therefore lacked jurisdiction to hear the appeal. In the Interest of A. L., 354 Ga. App. 59, 840 S.E.2d 148 (2020).
State can not appeal jury instruction issue.
- Because the state could not appeal a jury instruction issue, that portion of the state's cross-appeal was dismissed. Gardhigh v. State, Ga. , 844 S.E.2d 821 (2020).
In a juvenile delinquency case, the court dismissed "the proceeding", not the petition and, thus, the state did not have authority to appeal and the appellate court therefore lacked jurisdiction to hear the appeal. In the Interest of A. L., 354 Ga. App. 59, 840 S.E.2d 148 (2020).
Order discharging and acquitting defendant under § 17-7-170 is not appealable under this section. State v. Clendinin, 136 Ga. App. 303, 221 S.E.2d 71 (1975). But see State v. Benton, 246 Ga. 132, 269 S.E.2d 470 (1980).
State is not authorized to appeal the grant of a new trial in a criminal case. State v. Thurmond, 195 Ga. App. 369, 393 S.E.2d 518 (1990).
Reinstatement of dismissed appeal.
- Trial court's order reinstating a dismissed appeal in the state court is not one of the instances set out by statute from which the state may appeal. State v. Welch, 201 Ga. App. 803, 413 S.E.2d 747 (1991).
District attorney request for declaratory judgment on admissibility of hearsay evidence.
- Supreme Court of Georgia reversed the judgment of the lower courts granting a district attorney a declaratory judgment because the district attorney did not have the right to bring a declaratory judgment action to obtain review of the probable cause decisions of magistrate judges at preliminary hearings or to challenge the admissibility of hearsay evidence at such hearings. Leitch v. Fleming, 291 Ga. 669, 732 S.E.2d 401 (2012).
No application to state entities and actors.
- O.C.G.A. § 5-7-1 et seq., which limited appeals by the state in criminal cases, did not apply to the Department of Corrections (DOC) in the Department's appeal from an ex parte order sealing records of visits to inmates who were charged or witnesses in the murder of two prison guards; the statute applied to the prosecuting attorney responsible for the criminal case, not state entities and actors who had no control over prosecutions. State v. Rowe, Ga. , 843 S.E.2d 537 (May 18, 2020).
Motion in limine not a plea in bar.
- Defendant's motion in limine was not a plea in bar as argued by the state and thus, this appeal was not authorized under this section. State v. Land-O-Sun Dairies, Inc., 204 Ga. App. 485, 419 S.E.2d 743 (1992).
Appeal from order denying state's motion for reconsideration of sentence is not allowed under this section. State v. O'Neal, 156 Ga. App. 384, 274 S.E.2d 575 (1980).
Orders denying state's motions to allow similar transaction evidence and for reconsideration not directly appealable.
- Supreme court could not review the trial court's denial of the state's motion to allow similar transaction evidence and its motion for reconsideration because neither of these rulings was directly appealable; where the state appeals from one or more orders listed in O.C.G.A. § 5-7-1(a), O.C.G.A. § 5-6-34(d) does not authorize appellate review of any other ruling in the case because § 5-6-34(d) was not intended to apply to appeals pursuant to § 5-7-1 et seq. since the General Assembly deliberately omitted from § 5-6-34(d) appeals taken or authorized under § 5-7-1. State v. Lynch, 286 Ga. 98, 686 S.E.2d 244 (2009).
State's appeal from void order.
- State could properly challenge a trial court's order denying its motion to vacate an order granting a defendant's motion for a mistrial two months after the jury returned its verdict through a direct appeal because the order granting the mistrial was legally void. State v. Sumlin, 281 Ga. 183, 637 S.E.2d 36 (2006).
State's appeal from a trial court order that granted the defendant's amended motion for new trial in substance arrested the judgment of conviction, but the court did so improperly by considering the claim for relief, that the accusation was fatally defective, as part of the motion for new trial; rather, the state's appeal was pursuant to the state's right to appeal directly from a void or illegal judgment. State v. Graves, 322 Ga. App. 798, 746 S.E.2d 269 (2013).
Recusal of trial judge.
- An order denying the state's motion to recuse is not expressly included in the list enumerated in the statute of situations in which the state may appeal and, therefore, such an order is not appealable by the state. Ritter v. State, 269 Ga. 884, 506 S.E.2d 857 (1998).
Dismissal for lack of prosecution.
- The state's right to appeal is controlled by this section, which does not authorize an appeal from the trial court's dismissal of a case for lack of prosecution after the close of evidence. State v. Gribble, 169 Ga. App. 446, 313 S.E.2d 720 (1984).
Right to appeal case dismissed due to statute of limitations.
- Where trial court's order appealed from was not a directed verdict of acquittal on the merits, but a dismissal because the statute of limitations, subject to judicial notice, had allegedly expired, state had right to appeal direction of verdict for defendant. State v. Williams, 172 Ga. App. 708, 324 S.E.2d 557 (1984).
Where defendant sought dismissal of the charges against him based on the statute of limitations, the grant of the plea effectively dismissed the indictment, and the state could appeal the ruling. State v. Lowman, 198 Ga. App. 8, 400 S.E.2d 373 (1990).
In a quasi-criminal proceeding on violation of a county zoning ordinance, the state was authorized under paragraph (2) of subsection (a) to appeal from the lower court's decision dismissing the citation because of expiration of the applicable limitation period, not on evidentiary grounds. Johnson v. DeKalb County, 214 Ga. App. 756, 449 S.E.2d 311 (1994).
Appeal from finding of immunity from prosecution.
- Because O.C.G.A. § 5-7-1(a)(1) provides that the state may appeal an order dismissing "any count" of the indictment, the trial court's order that in effect dismissed two of the three counts by finding that the defendant was immune from prosecution under O.C.G.A. § 16-3-24.2 was appealable. State v. Yapo, 296 Ga. App. 158, 674 S.E.2d 44 (2009).
Order of trial court disqualifying district attorney.
- State did not have the right to appeal an order of the trial court disqualifying the district attorney from prosecuting a criminal defendant. State v. Smith, 268 Ga. 75, 485 S.E.2d 491 (1997).
Motion to disclose identity of informant.
- State was without authority to appeal from the grant of a motion to disclose the identity of the confidential informant because it was not among the enumerated instances set forth in this section, nor was the order dispositive of the charges against defendant. Glenn v. State, 271 Ga. 604, 523 S.E.2d 13 (1999).
Order placing case on dead docket not appealable.
- Trial court's order placing a case on the court's dead docket was not a dismissal of the accusation from which the state could bring an appeal. State v. Creel, 216 Ga. App. 394, 454 S.E.2d 804 (1995).
Criminal defendants cannot cross appeal suits brought by state.
- Despite resultant justice and judicial economy, court will not allow criminal defendants to cross appeal suits brought before court by state pursuant to this section; O.C.G.A. § 5-6-38 limits that right to civil parties and the court will not encroach upon the legislature's prerogative by extending that right. State v. Crapse, 173 Ga. App. 100, 325 S.E.2d 620 (1984), overruled on other grounds, Hubbard v. State, 176 Ga. App. 622, 337 S.E.2d 60 (1985).
Order in arrest of judgment.- Where the jury returned a verdict finding defendant guilty of the offenses of murder and hindering apprehension involving the same victim, and the trial court concluded as a matter of law that the verdicts were mutually exclusive and, therefore, vacated the felony-murder conviction and sentence, the court's order was, in effect, an order in arrest of judgment and the state was entitled to file a direct appeal.
Void sentences.
- Although this section, enumerating those specific situations wherein the state may appeal, does not allow for appeal from an order denying the state's motion to amend sentence, void sentences are appealable by the state. State v. Shuman, 161 Ga. App. 304, 287 S.E.2d 757 (1982).
Where the state contended that the trial court's action in probating defendant's sentence to confinement was void, the matter would be reviewed on the premise that void sentences are appealable by the state. State v. Johnson, 183 Ga. App. 236, 358 S.E.2d 840, cert. denied, 183 Ga. App. 907, 358 S.E.2d 840 (1987).
Upon a conviction of methamphetamine trafficking, because the sentence imposed by a trial judge against the defendant under O.C.G.A. § 16-13-31(g)(2) was supported by the record evidence that the defendant assisted the police in identifying a methamphetamine supplier, and did not result from an illegal departure from O.C.G.A. § 16-13-31(e)(1), the state's appeal from imposition of the same on grounds that it was void was dismissed. State v. Carden, 281 Ga. App. 886, 637 S.E.2d 493 (2006).
Sentences not void.
- State did not have the right to appeal sentences imposed by the trial court contrary to a plea agreement under O.C.G.A. § 5-7-1(a)(6) because the sentences were not void; the sentences were within the 20-year range of punishments for robbery and aggravated assault, O.C.G.A. §§ 16-5-21(b) and16-8-40(b), and the trial court had jurisdiction over the case, pursuant to Ga. Const. 1983, Art. VI, Sec. IV, Para. I and O.C.G.A. § 15-6-8(1). State v. Harper, 279 Ga. App. 620, 631 S.E.2d 820 (2006) was overruled. State v. King, 325 Ga. App. 445, 750 S.E.2d 756 (2013).
State not authorized to appeal sentence modification.
- State had no right to appeal the sentence modification granted to the defendant because the modification was not enumerated as an "appealable issue" under O.C.G.A. § 5-7-1. State v. Wilkerson, 348 Ga. App. 190, 820 S.E.2d 60 (2018).
State cannot appeal defendant's choice to proceed without jury.
- Since the trial court's ruling denying the state's objection to conducting defendant's criminal trial without a jury was not the type of ruling that the state was statutorily authorized to appeal, the state's appeal to the state supreme court regarding that denial and the denial of the state's petition for a writ of prohibition to compel a trial with a jury had to be dismissed. Howard v. Lane, 276 Ga. 688, 581 S.E.2d 1 (2003).
Because the trial court's adjudication of guilt entered against the defendant after a bench trial over the state's objection did not grant the state a right to appeal under O.C.G.A. § 5-7-1(a)(5), and the adjudication did not amount to a void judgment entered without jurisdiction, the state's appeal was dismissed. State v. Evans, 282 Ga. 63, 646 S.E.2d 77 (2007).
State appeal from granting of motion to suppress.
- While the state had a right to appeal from the trial court's act of granting defendant's motion to suppress, the trial court's ruling that defendant invoked defendant's right to remain silent was not clearly erroneous as the record showed that defendant shook defendant's head in the negative when the state police investigator asked the defendant, "You don't want to talk about it?" and, thus, the inculpatory statements defendant made in regard to the shooting of another person had to be suppressed. State v. Nash, 279 Ga. 646, 619 S.E.2d 684 (2005).
Court of Appeals was mistaken when the court concluded that the appeal was subject to O.C.G.A. § 5-7-1(a)(5) and dismissed the appeal as untimely as the state's appeal from the grant of the defendant's motion to suppress fell under § 5-7-1(a)(4) and was timely filed within 30 days of that ruling. State v. Andrade, 298 Ga. 464, 782 S.E.2d 665 (2016).
State's appeal from void sentence.
- Since the state was authorized to directly appeal from an allegedly void sentence, the state's argument that a trial court erred in failing to allow it to withdraw from a plea agreement was properly before the appellate court. State v. Harper, 279 Ga. App. 620, 631 S.E.2d 820 (2006), overruled on other grounds, by State v. Kelley, 298 Ga. 527, 783 S.E.2d 124 (2016).
State was required to file certificate of immediate review in order to appeal an order granting defendant a new trial.
- 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 the former version of O.C.G.A. § 5-7-2, which was then in effect, required the State of Georgia 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 to grant of new trial to defendant.
- In the state's appeal, a trial court erred in granting the defendant a new trial with regard to child sex abuse convictions because the defendant failed to show ineffective assistance of counsel since the two witnesses that were not called by defense counsel were not shown to have been reasonably known to defense counsel. State v. Wofford, 321 Ga. App. 249, 739 S.E.2d 110 (2013).
Motion to dismiss based on speedy trial violation.
- Trial court properly denied the defendant's motion to dismiss the indictment because the defendant failed to follow the interlocutory appeal procedures of O.C.G.A. § 5-6-34(b), the defendant waited over five years to assert the defendant's right to a speedy trial, and failed to show that the defendant had been prejudiced by the delay. Sosniak v. State, 292 Ga. 35, 734 S.E.2d 362 (2012).
Ruling that traffic stop was illegal was appealable.
- O.C.G.A. § 5-7-41(a)(4) permits the state to directly appeal "[f]rom an order, decision, or judgment suppressing or excluding evidence illegally seized...". Although the trial court did not end up excluding the evidence, when the court ruled that a traffic stop was illegal and purported to grant the defendant's motion to suppress to that extent, the court asserted jurisdiction to avoid any error at trial based on references to the illegality of the stop. State v. Charles, 344 Ga. App. 456, 810 S.E.2d 627 (2018).
RESEARCH REFERENCES
Am. Jur. 2d.
- 5 Am. Jur. 2d, Apellate Review, § 349 et seq. 14 Am. Jur. 2d, Certiorari, § 107 et seq.
C.J.S.- 24 C.J.S., Criminal Law, § 2342 et seq.
ALR.
- Adequacy of remedy by appeal in criminal cases to preclude prohibition sought on the ground of lack or loss of jurisdiction, 141 A.L.R. 1262.
Evidence erroneously stricken out as proper for consideration by appellate court to sustain finding or verdict, 152 A.L.R. 371.
Constitutionality of statute permitting appeal by state in criminal case, 157 A.L.R. 1065.
Appealability of order pertaining to pretrial examination, discovery, interrogatories, production of books and papers, or the like, 37 A.L.R.2d 586.
Appeal by state of order granting new trial in criminal case, 95 A.L.R.3d 596.