WILSON v. STATE (2020)

The Court of Appeals hereby passes the following order:

Following a jury trial, Jonathan George Wilson was convicted of a total of 14 criminal charges. He filed a motion for new trial, which the trial court denied as to Counts 1-13, but granted as to Count 14. That same day, the court entered an order of nolle prosequi as to Count 14. Wilson then filed a notice of appeal to this Court, but we lack jurisdiction because the appeal is premature.

Under OCGA § 5-6-34 (a) (1), appeals generally may be taken from “[a]ll final judgments, that is to say, where the case is no longer pending in the court below.” A trial court order granting a motion for new trial is a non-final order, leaving the case pending before the trial court. See State v. Ware, 282 Ga. 676, 677, 653 S.E.2d 21 (2007), superseded in part on other grounds by statute, Ga. L. 2011, pp. 612-613, § 1 (codified at OCGA § 5-7-2); see also Prather v. State, 303 Ga. App. 374, 375, n.5, 693 S.E.2d 546 (2010). Although the trial court entered an order of nolle prosequi as to Count 14, it appears that the court has not yet resentenced Wilson to reflect that order. Consequently, the case remains pending below, and Wilson was required to use the interlocutory appeal procedures – including obtaining a certificate of immediate review from the trial court – to obtain appellate review at this juncture. See OCGA § 5-6-34 (b); Boyd v. State, 191 Ga. App. 435, 435, 383 S.E.2d 906 (1989). His failure to do so deprives us of jurisdiction over this direct appeal, which is hereby DISMISSED. See Boyd, 191 Ga. App. at 435, 383 S.E.2d 906.

Upon entry of a trial court order resentencing Wilson, the superior court clerk is DIRECTED to re-transmit the appeal to this Court and to include a copy of this order in the record transmitted at that time. Wilson need not file a second notice of appeal to obtain appellate review at that time.