James Heath v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 14, 2019

The Court of Appeals hereby passes the following order: A19A1917. JAMES HEATH v. THE STATE.

Following a bench trial, James Kincaid Heath was convicted of several offenses, and the trial court sentenced him to 10 years with 5 to serve in confinement. Heath filed a motion for new trial, which the trial court denied as to his conviction for false imprisonment but granted as to his conviction for harassing phone calls. Heath subsequently filed a motion for out-of-time appeal, which the trial court granted. Heath then filed a direct appeal. We, however, lack jurisdiction. A criminal case remains pending until the court enters a written judgment of conviction and sentence on each count. Keller v. State, 275 Ga. 680, 680-681 (571 SE2d 806) (2002). Further, when the trial court grants a criminal defendant’s motion for new trial, the case is not final for purposes of filing a direct appeal. State v. Ware, 282 Ga. 676, 677 (653 SE2d 21) (2007). In his motion for new trial, Heath asked the trial court to “reverse” his conviction for harassing phone calls. Although the trial court’s order partially granting Heath’s motion for new trial arguably may be construed as a ruling that the evidence was insufficient to support his conviction for that offense, the trial court did not enter a new judgment of conviction. Thus, Heath’s criminal case remains pending before the trial court, and he was required to use the interlocutory appeal procedures – including obtaining a certificate of immediate review from the trial court – to appeal. See OCGA § 5-6-34 (b); Keller, 275 Ga. at 680-681. Heath’s failure to do so

deprives us of jurisdiction over this appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 05/14/2019 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.