Kenneth McPherson v. State ( 2016 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 06, 2016
The Court of Appeals hereby passes the following order:
A17A0365. KENNETH MCPHERSON v. THE STATE.
Kenneth F. McPherson was charged with three counts of child molestation and
one count of sexual exploitation of a minor. McPherson filed a motion to suppress
all evidence obtained during the execution of two search warrants. After a hearing,
the trial court denied the motion to suppress. However, on March 3, 2016, the trial
court subsequently vacated its order and granted the motion. On March 4, 2016, the
State filed a notice of appeal, and thereafter McPherson filed a cross-appeal.1
Nevertheless, on March 10, 2016, the trial court entered its “Second Order Denying
Motion to Suppress.” The trial court certified this order for immediate review, and
McPherson filed both an application for interlocutory appeal and a direct appeal. We
dismissed the application as superfluous. The direct appeal is superfluous as well.
After the trial court entered its order granting the motion to suppress, the State
filed a timely notice of appeal. See OCGA § 5-7-1 (a) (5). The notice of appeal
divested the trial court of jurisdiction to enter a new order on the issue of suppression.
See Pruitt v. State, 282 Ga. 30, 35 (5) (644 S.E.2d 837) (2007); Peterson v. State,
274 Ga. 165, 171 (6) (549 SE2d 387) (2001). Therefore, the second order entered by
the trial court denying the motion to suppress is a nullity. Peterson, supra. The
State’s appeal of the trial court’s order granting the motion to suppress remains
pending, and McPherson has already filed a notice of cross-appeal from that valid
1
Both cases have been docketed in this Court.
order. Accordingly, this appeal is superfluous, and it is therefore DISMISSED.2
Court of Appeals of the State of Georgia
Clerk’s Office,
10/06/2016
Atlanta,____________________
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.
2
We note that, while the second order denying the motion to suppress is a nullity,
the denial of a motion to suppress is an interlocutory order that requires compliance with
the interlocutory appeal procedure. See Genter v. State, 218 Ga. App. 311 (460 SE2d 879)
(1995); Hargraves v. Turner, 160 Ga. App. 807, 808 (287 SE2d 664) (1982).