Ashford Kendall Percy v. State

Court of Appeals of the State of Georgia ATLANTA,____________________ July 08, 2024 The Court of Appeals hereby passes the following order: A24A1019. ASHFORD KENDALL PERCY v. THE STATE. A grand jury indicted Ashford Percy for one count each of armed robbery and aggravated assault and two counts of possession of a firearm during the commission of a felony. At trial, a jury found Percy guilty of aggravated assault and one of the firearm charges but was unable to reach a verdict on the other two counts, and a mistrial was declared as to those charges. After the trial court sentenced Percy on the two counts of which he was convicted, he filed a timely motion for a new trial, which the trial court denied. Percy then filed this direct appeal. The State has filed a motion to dismiss the appeal as interlocutory. “[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.”(Citation and punctuation omitted.) Reedman v. State, 265 Ga. App. 162, 166 (8) ( 593 SE2d 46 ) (2003). See also Seals v. State, 311 Ga. 739, 746 (3) ( 860 SE2d 419 ) (2021) (declaring a mistrial on one of multiple counts “meant the case was not final under [Georgia] precedent,” even where that count was placed on the trial court’s “dead docket”); McCuen v. State, 191 Ga. App. 645, 646 ( 382 SE2d 422 ) (1989). Because this action remains pending before the trial court, Percy was required to use the interlocutory appeal procedures — including obtaining a certificate of immediate review from the trial court — to appeal his convictions and sentences. See OCGA § 5-6-34 (b); Chapman v. Clark, 313 Ga. App. 820, 822-823 (1) ( 723 SE2d 51 ) (2012); Boyd v. State, 191 Ga. App. 435, 435 ( 383 SE2d 906 ) (1989). His failure to do so deprives us of jurisdiction over this direct appeal. See Boyd, 191 Ga. App. at 435 . Consequently, the State’s motion to dismiss is GRANTED, and this direct appeal is hereby DISMISSED for lack of jurisdiction. Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 07/08/2024 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.