Brian Malverty v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ July 17, 2018

The Court of Appeals hereby passes the following order: A18A2068. BRIAN MALVERTY v. THE STATE.

In December 1986, Brian Malverty pleaded guilty to two counts of felony murder and was sentenced to concurrent life terms. Thereafter, the denial of Malverty’s motion for an out-of-time appeal of his guilty plea was affirmed on appeal. Malverty v. State, 303 Ga. 102 (810 SE2d 541) (2018). Malverty subsequently filed various motions, which the trial court denied.1 Malverty then filed the instant direct appeal. We, however, lack jurisdiction. Under our Constitution, the Supreme Court has appellate jurisdiction over “[a]ll cases in which a sentence of death was imposed or could be imposed.” Ga. Const. of 1983, Art. VI, Sec. VI, Par. III (8). Because a penalty of death can be imposed for the crime of felony murder, jurisdiction is proper in the Supreme Court. See OCGA § 16-5-1 (c), (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, 524 (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, 764-765 (740 SE2d 124) (2013). Accordingly, Malverty’s appeal is hereby TRANSFERRED to the Supreme Court for disposition.

1 Malverty’s motion for production of transcripts and documents at the government’s expense was granted in part.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 07/17/2018 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.