Khabir Daniel v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ September 22, 2022

The Court of Appeals hereby passes the following order: A23A0168. KHABIR DANIEL v. THE STATE.

In August 2019, a jury found Khabir Daniel guilty of felony statutory rape, aggravated child molestation, felony sodomy, child molestation, and enticing a child for indecent purposes, and the trial court sentenced him to twenty-five years followed by life on probation. Daniel subsequently filed both a timely motion for new trial and a motion to recuse the trial judge. In August 2021, the trial court denied Daniel’s motion to recuse. Daniel filed a timely notice of appeal, which was docketed in this Court on August 10, 2022, as the instant appeal. In the meantime, the trial court denied Daniel’s motion for new trial. Daniel filed a timely notice of appeal from that order, which was docketed in this Court as Case No. A22A1709. The instant appeal must be dismissed. The trial court’s order denying the motion to recuse is not subject to a direct appeal because at the time Daniel filed his notice of appeal from the denial of his motion to recuse, his case was still pending as his motion for new trial had not been ruled on. Thus, Daniel was required to comply with the interlocutory appeal procedure set forth in OCGA § 5-6-34 (b) to obtain appellate review at that juncture. See Duke v. State, 306 Ga. 171, 172 (1) (829 SE2d 348) (2019); In re Booker, 186 Ga. App. 614 (367 SE2d 850) (1988) (appeal from an order denying a motion to recuse requires an application for interlocutory review). Moreover, this appeal is superfluous because the trial court’s denial of the motion to recuse is reviewable as part of Daniel’s appeal from the final order in the case – the denial of his motion for new trial. See OCGA § 5-6-34 (d) (“Where an appeal is taken under any provision of subsection (a), (b), or (c) of this Code section,

all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court[.]”).1 Indeed, in his appellate brief for Case No. A22A1709, Daniel has enumerated as error the trial court’s denial of his motion to recuse. For the foregoing reasons, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 09/22/2022 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.

1 Daniel’s defective attempt to seek appellate review of the interlocutory order denying his motion to recuse does not preclude us from considering that issue on appeal from the final judgment. See Stanley v. Hart, 254 Ga. App. 258, 260 (1) (562 SE2d 186) (2002).