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STEWART v. STATE

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Court of Appeals of Georgia.

STEWART v. The STATE (Two Cases).

Nos. A00A0183, A00A0184.

Decided: September 24, 1999

Salter & Shook, Mitchell M. Shook, Vidalia, for appellant. Thurbert E. Baker, Attorney General, J. Thomas Durden, Jr., District Attorney, for appellee.

Freddie Stewart was charged in separate indictments in Tattnall County and Bryan County, alleging the unlawful disposition of proceeds received from preneed funeral service contracts, in that Stewart failed to maintain such funds unimpaired in an authorized state bank as required by OCGA § 43-18-96.   Stewart moved to dismiss the indictments, contending the statute under which he was charged was unconstitutional.   Both the Tattnall Superior Court and the Bryan Superior Court denied the motions to dismiss.   Stewart filed notices of direct appeal to the Supreme Court of Georgia, which concluded its subject matter jurisdiction had not been invoked and transferred the cases to the Court of Appeals of Georgia.   Held:

 The denial of each motion to dismiss the respective indictment is not a final judgment, directly appealable under OCGA § 5-6-34(a)(1), but is only an interlocutory order.  Hicks v. State, 234 Ga. 142, 143, 214 S.E.2d 658.   Although Stewart obtained certificates of immediate review from the superior court, he did not pursue the mandatory application procedures of OCGA § 5-6-34(b) for interlocutory appeal.   Overruled exceptions to the charging instrument 1 are reviewed only under the interlocutory procedures of OCGA § 5-6-34(b) or after a conviction.  Ivey v. State, 210 Ga.App. 782, 783, 437 S.E.2d 810.   We are without jurisdiction to consider the merits of these direct appeals from interlocutory orders, and so Case Nos. A00A0183 and A00A0184 must be dismissed.

Appeals dismissed.

FOOTNOTES

1.   Compare Patterson v. State, 248 Ga. 875, 287 S.E.2d 7 (denial of double jeopardy plea is directly appealable);  Hubbard v. State, 254 Ga. 694, 333 S.E.2d 827 (denial of demand for discharge and acquittal under OCGA § 17-7-170 is directly appealable).

McMURRAY, Presiding Judge.

JOHNSON, C.J., and PHIPPS, J., concur.

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