Opinion
A24A0253
01-29-2024
RICHARD JOHNSTON v. THE STATE.
The Court of Appeals hereby passes the following order:
Richard Johnston appeals from his convictions for child molestation and related crimes as well as the denial of his motion for new trial. We, however, lack jurisdiction, and this appeal is therefore DISMISSED.
At trial in this case, the jury could not reach a verdict on one count of rape, and the trial court declared a mistrial. The trial court subsequently entered an order placing the rape count on the dead docket and entered a purported final judgment. Our Supreme Court recently held, however, that when a count of the indictment is dead-docketed, the case remains pending below, so the provisions of OCGA § 5-6-34 (a) (1) allowing a direct appeal from a final judgment do not apply. Seals v. State, 311 Ga. 739 (860 S.E.2d 419) (2021), overruled in part on other grounds by Gonzales v. State, 315 Ga. 661 (884 S.E.2d 339) (2023). Rather, to pursue an appeal, the defendant must follow the procedures for an interlocutory appeal under OCGA § 5-6-34 (b), which Johnston did not do. See id.
"Because [Johnston]'s case is pending below yet he failed to follow the interlocutory appeal procedures, we must dismiss his appeal." Spears v. State, 360 Ga.App. 776, 777 (861 S.E.2d 619) (2021).