Christopher Allen v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ February 16, 2021

The Court of Appeals hereby passes the following order: A21A0354. CHRISTOPHER ALLEN v. THE STATE.

Christopher Allen was charged by indictment with rape, armed robbery, aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony, and false imprisonment. The trial court’s amended written sentence indicates that (i) Allen was convicted of armed robbery and aggravated assault with a deadly weapon, with the latter conviction merging into the former, and (ii) a mistrial was declared on the other three charges. The only subsequent material in the record regarding the three charges on which a mistrial was declared shows that the trial court placed the charges on the dead docket. Allen filed a motion for new trial, which the trial court denied in August 2020. Allen then filed the instant appeal.1 We lack jurisdiction. “[A] mistrial is not a final judgment or decision from which appeal will lie, as the cause of action is still pending in the trial court.” Reedman v. State, 265 Ga. App. 162, 166 (8) (593 SE2d 46) (2003) (holding that a prior appeal by the defendant arising out of the same prosecution and following convictions on two of three charges, but the grant of a mistrial on the third charge, did not act as a supersedeas that deprived the trial court of jurisdiction to retry the defendant on the third charge because, given the mistrial on that charge, “there was no judgment of conviction to

1 Allen previously appealed from the trial court’s January 2019 order denying his motion for new trial, but this Court vacated and remanded for a hearing on a claim of ineffective assistance of trial counsel which Allen had raised in the motion. Case No. A19A2446 (Jan. 16, 2020).

appeal”); see also McCuen v. State, 191 Ga. App. 645, 646 (382 SE2d 422) (1989); Nickles v. State, 86 Ga. App. 284, 284 (1) & (3) (71 SE2d 574) (1952). Similarly, placing a case on the dead docket “constitutes neither a dismissal nor a termination of the prosecution in the accused’s favor. A case is still pending which can be called for trial at the judge’s pleasure, or upon which the accused can make a demand for trial.” State v. Creel, 216 Ga. App. 394, 395 (454 SE2d 804) (1995); accord Miller v. State, 325 Ga. App. 764, 771 (4) (b) (754 SE2d 804) (2014); McCord v. Jones, 168 Ga. App. 891, 892-893 (311 SE2d 209) (1983). Because this action remains pending before the trial court, Allen was required to use the interlocutory appeal procedures – including obtaining a certificate of immediate review from the trial court – to appeal the order at issue here. See OCGA § 5-6-34 (b); Boyd v. State, 191 Ga. App. 435, 435 (383 SE2d 906) (1989); accord Chapman v. Clark, 313 Ga. App. 820, 822-823 (1) (723 SE2d 51) (2012). His failure to do so deprives us of jurisdiction over this direct appeal, which is hereby DISMISSED. See Boyd, 191 Ga. App. at 435.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 02/16/2021 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.