Summary
explaining that a defendant may appeal his first offender disposition under OCGA § 42–8–64 only after the trial court enters a written judgment imposing first offender status
Summary of this case from Higdon v. StateOpinion
74481.
DECIDED NOVEMBER 20, 1987.
Criminal trespass. Fulton State Court. Before Judge Cummings.
Charles Littlejohn, pro se. James L. Webb, Solicitor, E. Duane Cooper, Assistant Solicitor, for appellee.
Appellant was tried before a jury and was found guilty of criminal trespass. In his notice of appeal as amended, appellant states that he is appealing from the guilty verdict that was returned by the jury and from the "sentencing" of the trial court.
We have conducted a careful review of the entire record in this case, including the supplemental record provided by the clerk of the trial court pursuant to our order. We have found neither a written judgment nor a written sentence entered by the trial court on the jury verdict. "The verdict of a jury, whether resulting from direction or from deliberation, is not an `appealable judgment.' [Cit.].... The verdict itself is not a judgment or a ruling, and hence does not fall within the provision of [OCGA § 5-6-34 (a)] that `Appeals may be taken to the Supreme Court and [the] Court of Appeals from [...] judgments and rulings of the superior courts... .'" (Emphasis in original.) Teppenpaw v. Blalock, 121 Ga. App. 320, 321 (2) ( 173 S.E.2d 442) (1970), aff'd 226 Ga. 619 ( 176 S.E.2d 711) (1970). "`(A)ppeals from the lower courts may be taken only from final judgments except in certain enumerated instances. [Cits.] The language used (in OCGA § 5-6-34 (a) (1)) is that the judgment is final "where the [case] is no longer pending in the court below..."' [Cit.] `Further, before an appeal may be made, the judgment appealed from must be in writing, and not verbal. [Cits.]' [Cit.]" Crolley v. State, 182 Ga. App. 2, 3 (1) ( 354 S.E.2d 864) (1987).
A review of the transcript indicates that the trial court may have intended to grant appellant first offender status. "[I]t is clear that OCGA § 42-8-64 is intended to provide a defendant a direct appeal from his conviction upon the imposition of first-offender status (a `sentence' if you will), notwithstanding the absence of a formal and final `adjudication of guilt.' [Cits.]" Dean v. State, 177 Ga. App. 123, 124 (1) ( 338 S.E.2d 711) (1985). In this record, however, there is no written document which has been signed by the trial court and which purports to impose first offender status upon appellant. See Uniform State Court Rule 39.7. "'[B]efore an appeal may be made, the judgment appealed from must be in writing, and not verbal. [Cits.]' [Cit.] Therefore, the instant criminal proceedings against appellant [would] obviously [be] `pending' in the trial court until such time as his [first offender] sentence [is] entered in writing and [becomes] `final.'" (Emphasis supplied.) Crolley v. State, supra at 3 (1).
If appellant has consented to first offender treatment, the trial court should enter a written order wherein such status is imposed upon him. If appellant has not consented to first offender treatment, the trial court should enter a written judgment of conviction and sentence as in any other criminal case. Until the trial court undertakes to accomplish one or the other, this case is still pending before it. It follows that this court lacks jurisdiction to entertain appellant's appeal at this time. Compare Gillen v. Bostick, 234 Ga. 308, 309 (1) ( 215 S.E.2d 676) (1975) and LeGallienne v. State, 180 Ga. App. 108, 110 (3) ( 348 S.E.2d 471) (1986), holding that prematurely filed notices of appeal are sufficient to confer appellate jurisdiction over those cases wherein final orders have actually been entered. After the entry of a final order in this case, appellant, if dissatisfied, may pursue whatever post-judgment remedies are available to him. In any event, the notice of appeal that appellant previously filed is not sufficient to confer jurisdiction upon this court and, if such jurisdiction is ever to be conferred, it must be by virtue of a notice of appeal timely filed by appellant after the entry of a final judgment in this case.
Appeal dismissed. Banke, P. J., and Benham, J., concur.