CITY OF ATLANTA OFFICE OF SOLICITOR GENERAL v. ALLEN (2026)

The City of Atlanta Office of the Solicitor General (“the Solicitor”) filed a petition in the Dekalb County Superior Court requesting review of the municipal court's dismissal of charges against Eric Allen after the municipal court found that the State failed to establish probable cause that Allen was the perpetrator of felony shoplifting. The superior court found that it lacked jurisdiction to review the probable cause determination made by the municipal court and dismissed the petition. In so ruling, the court found that the State's authority to appeal pursuant to OCGA § 5-3-7 “is limited to a list of instances found in [OCGA §§ 5-7-1 and 5-7-2],” and “ [t]he appeal of a ruling finding a lack of probable cause is not one of those statutory categories.” This Court granted the Solicitor's petition for discretionary review of the superior court's order. On appeal, the Solicitor argues, among other things, that the superior court erred in dismissing the petition for lack of jurisdiction. Upon review, we affirm the trial court's judgment.

On August 8, 2024, Eric Allen was arrested for shoplifting at a retail store located in DeKalb County in the city of Atlanta. Allen appeared before the Municipal Court of Atlanta on August 27, 2024 for a preliminary hearing and bind over to superior court. The arresting officer testified that he was approached by a store security guard who told them that a man suspected of shoplifting would soon be exiting the store, and asked for the officers’ assistance in apprehending the man. The security guard described the suspected shoplifter as an “African-American male, he identified as Eric Allen” and stated that security was waiting for the man “to pass all points of sale” with the merchandise before approaching him. The officers apprehended a man near the store's exit. When caught, the suspect had on his person a backpack belonging to the store which contained a number of items taken from the store. Allen was arrested and charged with theft by shoplifting.

Following the close of the evidence, the municipal court found that while the State had shown the commission of a crime, it had failed to establish probable cause that Allen was the man who committed the crime. The court expressed that although Allen had appeared in court, the State never asked the officer if he could identify Allen as the man who was arrested at the store. The court dismissed the charge for lack of probable cause.

The Solicitor filed a petition for judicial review in DeKalb County Superior Court pursuant to OCGA § 5-3-4 (a),¹ after which Allen filed a motion to dismiss the petition.² Finding that it lacked jurisdiction to consider the appeal because the State had no right of appeal under OCGA § 5-7-3 ³ other than those instances provided for in OCGA § 5-7-1 and 5-7-2, the superior court dismissed the petition. The court concluded that an appeal from the municipal court's finding of no probable cause was not statutorily authorized. The trial court further elaborated that

[w]hen the underlying subject matter of an appeal concerns rulings made in a criminal prosecution, no appeal will be allowed regardless of the procedure employed, unless one of the statutory categories is applicable. ․ Petitioner argues that OCGA § 5-3-1 et seq, has somehow expanded the State's appellate rights. But this reasoning is exactly what was rejected in both Armstrong [v. Solicitor General of Gwinnett County, 366 Ga. App. 865, 884 S.E.2d 556 (2023)]and Leitch [v. Fleming, 291 Ga. 669, 732 S.E.2d 401 (2012)] and the State's appellate rights do not change just because a different procedural method is employed.

This appeal ensued.

As an initial matter we note that, “when a court either has or lacks subject matter jurisdiction, despite any conflict in the facts, the trial court should as a threshold issue determine its jurisdiction.” Dept. of Transp. v. Dupree, 256 Ga. App. 668, 671-72 (1), 570 S.E.2d 1 (2002), disapproved on other grounds by Dept. of Trans. v. Thompson, 354 Ga. App. 200, 207 (1) n. 6, 840 S.E.2d 679 (2020).

On appeal, the Solicitor contends that OCGA § 5-7-1 et seq., does not limit a municipal prosecutor from seeking review and correction of errors in the superior court from decisions in the municipal court; that by filing a review pursuant to OCGA § 5-3-6 (a), the Solicitor invoked the superior court's intermediate judgment under OCGA § § 15-6-8 (1), (4) (A) - (D); and that the superior court should have construed “shall” in OCGA § 5-3-2 to mandate that the court seek to resolve the issues raised in the petition on the merits.

OCGA § 5-3-4 (a) of the State and Superior Court Appellate Practice Act (“the Act”) provides that state and superior courts have appellate jurisdiction over final judgments of lower judicatories. And OCGA § 5-3-6 (a) further directs that a “petitioner invokes the appellate jurisdiction of a reviewing court under this chapter by filing a petition for review with the clerk of the reviewing court.” See also OCGA § 15-6-8 (4) (B) (providing that the superior courts have authority “[t]o exercise a general supervision over all inferior tribunals and to review and correct, in the manner prescribed by law, the judgments of ․ [m]unicipal courts or councils”).

Unlike OCGA § 5-7-1, the Act – OCGA § 5-3-1 et. seq – does not address the substantive rights of the State to appeal in criminal cases. Instead it serves as a procedural framework for general appellate practice in superior and state courts. See OCGA § 5-3-2 (b) (1) (expressing that “[i]t is the intent of the General Assembly in enacting this chapter to ․ [p]rovide a single, modern, and uniform procedure called a ‘petition for review’ for appealing a decision made by a lower judicatory to a superior or state court, as authorized by the laws and the Constitution of this state[.]”). Within this procedural framework, the Act further expresses the intent to “[i]ncrease access to justice through the greater resolution of appeals on the basis of substantive issues rather than on complex procedural grounds” and ․ “[r]etain the limited appellate jurisdiction of state courts prescribed in the Constitution of Georgia and Code sections outside of this chapter.” OCGA § 5-3-2 (b) (2), (3).

Conversely, OCGA § 5-7-1 (a) sets forth the various circumstances under which the State may file an appeal, including, for example, from an order dismissing an indictment, OCGA § 5-7-1 (a) (1); sustaining a plea in bar, OCGA § 5-7-1 (a) (3); suppressing or excluding illegally seized evidence, OCGA § 5-7-1 (a) (4); or excluding the State's evidence at trial under certain conditions, OCGA § 5-7-1 (a) (5). See State v. Wheeler, 310 Ga. 72, 76 (3), 849 S.E.2d 401 (2020) (noting that “the requirements set forth in OCGA § 5-7-1 (a) (5) ․ are jurisdictional and must be satisfied to confer jurisdiction on an appellate court”).

Here, the superior court correctly concluded that it was without jurisdiction to hear the Solicitor's appeal. The superior court found that the State's authority to petition for review in a criminal case “is limited to a list of instances found in OCGA §[§] 5-7-1 and [5-7-]2.” In Leitch, while noting the instances in OCGA § 5–7–1 which the State may file an appeal in a criminal case, our Supreme Court pointedly held that OCGA § 5-7-1 “does not provide for an appeal from the magistrate court's decision dismissing charges for lack of probable cause. Cf. OCGA § 5–7–1(a)(1) (State may appeal from an order, decision, or judgment dismissing any indictment or accusation).” 291 Ga. at 671 (2) (a), 732 S.E.2d 401.⁴

Similarly in Armstrong, this Court considered the superior court's jurisdiction to review a recorder court judge's refusal to sign a document reflecting the solicitor general's election to prosecute a case as a state offense and to transfer a case from recorder's court to state court. 366 Ga. App. at 865-66, 884 S.E.2d 556. In concluding that the superior court lacked jurisdiction pursuant to OCGA § 5-7-1 and “should have dismissed the petition without reaching the merits,” we advised that

[h]ere, the State, in the person of the solicitor-general, has attempted to avoid this restriction by attacking the alleged recorder's court policy through the device of a writ of mandamus. However, as the underlying subject matter concerns rulings allegedly made in criminal prosecutions, and from which the State has no ability to appeal, the trial court erred by considering the petition for mandamus and its ruling thereon must be reversed.

Armstrong, 366 Ga. App. at 867-68 (1), 884 S.E.2d 556 (citation modified), quoting Magistrate Court v. Fleming, 284 Ga. 457, 458, 667 S.E.2d 356 (2008) (noting that “[t]he dismissal of charges by a magistrate judge at a preliminary hearing is not subject to challenge by the State,” as OCGA § 5-7-1 et seq. “authoriz[es] appeal and certiorari by State in criminal cases only under specified circumstances”).

The Solicitor argues that the Act has in effect expanded the State's appeal rights. We are nonetheless, guided by the well known principles that “[a] statute draws its meaning ․ from its text. [And] [u]nder our well-established rules of statutory construction, we presume that the General Assembly meant what it said and said what it meant.” Ga. Lottery Corp. v. Tabletop Media, 346 Ga. App. 498, 502 (2), 816 S.E.2d 438 (2018) (emphasis omitted). See Moore v. Robinson, 206 Ga. 27, 40 (6), 55 S.E.2d 711 (1949) (“It is always the duty of a court, in construing a statute, to ascertain and give full effect to the legislative intent[.]”).

Moreover, “a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent.” State v. Nankervis, 295 Ga. 406, 409 (2), 761 S.E.2d 1 (2014) (quotation marks omitted). See State v. Gribble, 169 Ga. App. 446, 313 S.E.2d 720 (1984) (“The General Assembly having placed the specific conditions upon appeals by the state in criminal cases ․ we will not by judicial construction extend the right of appeal beyond these instance.”) (quotation marks omitted). It is likewise well settled that we presume that the legislature enacts all statutes with knowledge of the existing laws. Glass v. Faircloth, 354 Ga. App. 326, 331 (2), 840 S.E.2d 724 (2020). If the General Assembly wanted to carve an exception for the State to bring appeals beyond those specified in OCGA § § 5-7-1 and 5-7-2, it could have included specific language to that effect as it has done in other statutes. The State may not circumvent the specific procedures for criminal appeals by relying on more general procedural mechanisms. See Leitch, 291 Ga. at 672, 732 S.E.2d 401 (“The State does not have the right to directly appeal the judges’ probable cause decisions and is attempting in this case to circumvent the appellate procedure for seeking review of criminal rulings. ․ [T]he State cannot indirectly do what it does not have the authority to do directly.”). See also Chase v. State, 285 Ga. 693, 698 (2), 681 S.E.2d 116 (2009) (courts may not usurp the General Assembly's legislative role and legislate by judicial fiat by engrafting language from one Code subsection onto another).

Accordingly, we discern no error by the trial court in the dismissal of the Solicitor's petition.

Judgment affirmed.

FOOTNOTES

1.   The statute provides:(a) Except as provided in subsection (b) of this Code section, the superior and state courts shall have appellate jurisdiction pursuant to this chapter over a final judgment of a lower judicatory.(b) The superior courts shall not have appellate jurisdiction pursuant to this chapter over any state court. The state courts shall not have appellate jurisdiction pursuant to this chapter over any superior court. In addition, neither a superior court nor a state court shall have appellate jurisdiction pursuant to this chapter over the following courts or matters:(1) Juvenile courts;(2) The Municipal Court of Columbus;(3) The Civil Court of Macon-Bibb County;(4) The Civil Court of Richmond County;(5) The Georgia State-wide Business Court;(6) A civil case in an Article 6 probate court;(7) An order appointing a temporary administrator or any other order not appealable from a probate court subject to this chapter; and(8) Any other court from which an appeal directly to the Court of Appeals or the Supreme Court is authorized.OCGA § 5-3-4 (a) (b).

2.   In his motion to dismiss and on appeal, Allen asserts that venue was not properly in the Dekalb County Superior Court but rather in Fulton County Superior Court. Thus, he argues, the issue must be resolved before the underlying merits can be reached. Although the trial court's order noted that oral argument was heard on Allen's motion to dismiss, there is no transcript of the hearing in the appellate record. The order only reflects that the State's authority to appeal was addressed at the hearing. However, venue may be waived, OCGA § 9-11-12 (h) (1) (A)-(B), and without a transcript we have no way to review the trial court's decision making with regard to this issue. See Bonner v. Smith, 226 Ga. App. 3, 4 (1), 485 S.E.2d 214 (1997)(“when record contains no transcript of evidence at bench trial, appellate court must assume that the trial court was correct in its factual finding relative to venue”); Chernowski v. State, 330 Ga. App. 702, 707-08 (1), 769 S.E.2d 126 (2015) (noting in absence of complete record nothing for the Court to review).

3.   “A proceeding by certiorari or petition for review may be taken by and on behalf of the State of Georgia from one court to another court of this state, where the right of certiorari is provided as a procedure for appealing a judgment, in the specified situations set forth in Code Sections 5-7-1 and 5-7-2.” OCGA § 5-7-3 (emphasis supplied). See Ga. L. 1973 at 297, § 3; Ga. L. 2023 at 728, § 3/HB 186, effective July 1, 2023.

4.   Following oral argument in this Court, the parties were invited to submit supplementary briefs on the impact of the Georgia Supreme Court's holding in Leitch on the expansion of the State's appeal rights under the Act. We thank them for their helpful responses.

Barnes, Presiding Judge.

Brown, C. J., and Watkins, J., concur.