Joseph Lee Jones v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ October 18, 2016

The Court of Appeals hereby passes the following order: A16A1799. JOSEPH LEE JONES v. THE STATE.

On October 15, 2015, a jury found Joseph Lee Jones guilty of criminal attempt to commit armed robbery, elder abuse, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. The trial court entered its disposition on January 28, 2016. R1. 368-369, 420 On October 23, 2015, while still represented by counsel, Jones filed a pro se notice of appeal. R1. 1, 310-311 Thereafter, his trial counsel filed a motion for new trial. Attached to Motion to Dismiss We lack jurisdiction for two reasons. First, Jones’s pro se notice of appeal is a nullity because he currently is represented by counsel in this action and thus may not attempt to represent himself. See Tolbert v. Toole, 296 Ga. 357, 363 (3) (767 SE2d 24) (2014) (defendant’s pro se notice of appeal, filed when the record indicated he was represented by counsel, had no legal effect and did not divest trial court of jurisdiction to try him). “The Sixth Amendment right does not afford the defendant the hybrid right to simultaneously represent himself and be represented by counsel.” Hance v. Kemp, 258 Ga. 649, 650 (1) (373 SE2d 184) (punctuation omitted). Second, the order that Jones seeks to appeal is not a final order because his motion for a new trial remains pending in the trial court. Accordingly, Jones was required to follow the interlocutory application procedures set forth in OCGA § 5-6-34 (b), which include obtaining a certificate of immediate review from the trial court, to obtain appellate review at this time. See Hann v. State, 292 Ga. App. 719, 720 (1) (665 SE2d 731) (2008) (while a motion for new trial is pending, appeals must comply with the interlocutory appeal requirements). Jones’s failure to comply with

the interlocutory appeal procedures deprives this Court of jurisdiction. Based on the foregoing, the State’s motion to dismiss this pro se, premature appeal is hereby granted. The appeal is DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia 10/18/2016 Clerk’s Office, Atlanta,____________________ 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.