2021 Georgia Code
Title 5 - Appeal and Error
Chapter 7 - Appeal or Certiorari by State in Criminal Cases
§ 5-7-2. Certification Required for Immediate Review of Nonfinal Orders, Decisions, or Judgments; Exception; Motion for New Trial

1. Except as provided in subsection (b) of this Code section, in any appeal under this chapter where the order, decision, or judgment is not final, it shall be necessary that the trial judge certify within ten days of entry thereof that the order, decision, or judgment is of such importance to the case that an immediate review should be had.
2. A certificate of immediate review shall not be required from an:
   1. Order, decision, or judgment suppressing or excluding evidence as set forth in paragraph (4) or (5) of subsection (a) of Code Section 5-7-1; or
   2. Order, decision, or judgment described in paragraph (1) or (7) of subsection (a) of Code Section 5-7-1.
3. For purposes of this Code section, the granting of a motion for new trial or an extraordinary motion for new trial shall be considered a final order.

(Ga. L. 1973, p. 297, § 2; Ga. L. 2011, p. 612, § 1/HB 390; Ga. L. 2012, p. 899, § 1-2/HB 1176; Ga. L. 2013, p. 222, § 2/HB 349.)

The 2011 amendment, effective May 12, 2011, designated the existing provisions as subsection (a); substituted "Except as provided in subsection (b) of this Code section" for "Other than from an order, decision, or judgment sustaining a motion to suppress evidence illegally seized" at the beginning of subsection (a); and added subsections (b) and (c).

The 2012 amendment, effective July 1, 2012, inserted "(1) or" in paragraph (b)(2). See the editor's note for applicability.

The 2013 amendment, effective July 1, 2013, substituted the present provisions of paragraph (b)(1) for the former provisions, which read: "Order, decision, or judgment suppressing or excluding illegally seized evidence; or". See editor's note for applicability.

- Review of orders, decisions, or judgments not subject to direct appeal, § 5-6-34(b).

- 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."

- 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).

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).

- 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 direct appeal by state. State v. Smalley, 138 Ga. App. 747, 227 S.E.2d 488 (1976).

- 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).

- 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).

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).

- 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).

- 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).

- 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).

- 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 a 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).

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 (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, 321 Ga. App. 249, 739 S.E.2d 110 (2013); State v. Nicholson, 321 Ga. App. 314, 739 S.E.2d 145 (2013); State v. Outen, 296 Ga. 40, 764 S.E.2d 848 (2014); State v. Hamilton, 308 Ga. 116, 839 S.E.2d 560 (2020); State v. Wheeler, 310 Ga. 72, 849 S.E.2d 401 (2020).

RESEARCH REFERENCES

C.J.S.

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