Flavio Pena v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ February 01, 2018

The Court of Appeals hereby passes the following order: A18D0299. FLAVIO PENA v. THE STATE.

After Flavio Pena was convicted of malice murder and related crimes, the Supreme Court affirmed his convictions on direct appeal. See Pena v. State, 297 Ga. 418 (774 SE2d 652) (2015). Subsequently, Pena filed an extraordinary motion for new trial, which the trial court denied and dismissed. Pena then filed the instant application for discretionary appeal in this Court. Under our Constitution, however, the Supreme Court has appellate jurisdiction over “[a]ll cases in which a sentence of death was imposed or could be imposed.” See Ga. Const. of 1983, Art. VI, Sec. VI, Par. III (8). Because a penalty of death can be imposed for the crime of murder, jurisdiction is proper in the Supreme Court. See OCGA § 16-5-1 (a), (e) (1); Neal v. State, 290 Ga. 563, 572 (722 SE2d 765) (2012) (Hunstein, C. J., concurring); see also State v. Thornton, 253 Ga. 524, 525 (1) (322 SE2d 711) (1984) (directing this Court to transfer “all cases in which either a sentence of death or of life imprisonment has been imposed upon conviction of murder”). The Supreme Court’s jurisdiction over murder cases includes appeals from orders resolving post-judgment motions in such cases. See Simpson v. State, 292 Ga. 764 (740 SE2d 124) (2013).

Accordingly, this application is hereby TRANSFERRED to the Supreme Court for disposition.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 02/01/2018 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.