Demetrius Morgan v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ August 12, 2019

The Court of Appeals hereby passes the following order: A19A1197. DEMETRIUS MORGAN v. THE STATE.

A jury convicted Demetrius Morgan of one count of participation in criminal street gang activity, two counts of armed robbery, one count of aggravated assault, two counts of false imprisonment, one count of burglary in the first degree, and one count of possession of a firearm during the commission of a felony. As part of his amended motion for new trial, Morgan argued that the trial court should modify his sentence pursuant to OCGA § 17-10-1 (f). The trial court reserved ruling on the sentence modification request until after his direct appeal was resolved, but otherwise denied the motion for new trial. Morgan then timely filed a notice of appeal. We, however, lack jurisdiction. Pursuant to OCGA § 5-6-34 (a) (1), a defendant has the right to directly appeal a “final judgment[], that is to say, where the case is no longer pending in the court below.” See also OCGA § 5-6-38 (a) (allowing a defendant to file a notice of appeal within 30 days after entry of an order “overruling[] or otherwise finally disposing of the motion” for new trial). Because the trial court reserved ruling on Morgan’s sentence modification request, the court did not finally dispose of the motion for new trial, and it remains pending below. Accordingly, we lack jurisdiction over this appeal, which is hereby DISMISSED. Upon entry of an order disposing of Morgan’s sentence modification request, the superior court clerk is DIRECTED to retransmit Morgan’s appeal. Morgan need not file a second notice of appeal as the prematurely filed notice will ripen upon entry

of the order finally disposing of the motion for new trial. See Livingston v. State, 221 Ga. App. 563, 564-568 (1) (472 SE2d 317) (1996).

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 08/12/2019 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.