Joseph Lee Jones v. State ( 2016 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 18, 2016
The Court of Appeals hereby passes the following order:
A16A1799. JOSEPH LEE JONES v. THE STATE.
On October 15, 2015, a jury found Joseph Lee Jones guilty of criminal attempt
to commit armed robbery, elder abuse, possession of a firearm during the commission
of a felony, and possession of a firearm by a convicted felon. The trial court entered
its disposition on January 28, 2016. R1. 368-369, 420 On October 23, 2015, while
still represented by counsel, Jones filed a pro se notice of appeal. R1. 1, 310-311
Thereafter, his trial counsel filed a motion for new trial. Attached to Motion to
Dismiss We lack jurisdiction for two reasons.
First, Jones’s pro se notice of appeal is a nullity because he currently is
represented by counsel in this action and thus may not attempt to represent himself.
See Tolbert v. Toole, 296 Ga. 357, 363 (3) (767 SE2d 24) (2014) (defendant’s pro se
notice of appeal, filed when the record indicated he was represented by counsel, had
no legal effect and did not divest trial court of jurisdiction to try him). “The Sixth
Amendment right does not afford the defendant the hybrid right to simultaneously
represent himself and be represented by counsel.” Hance v. Kemp, 258 Ga. 649, 650
(1) (373 SE2d 184) (punctuation omitted).
Second, the order that Jones seeks to appeal is not a final order because his
motion for a new trial remains pending in the trial court. Accordingly, Jones was
required to follow the interlocutory application procedures set forth in OCGA §
5-6-34 (b), which include obtaining a certificate of immediate review from the trial
court, to obtain appellate review at this time. See Hann v. State, 292 Ga. App. 719,
720 (1) (665 SE2d 731) (2008) (while a motion for new trial is pending, appeals must
comply with the interlocutory appeal requirements). Jones’s failure to comply with
the interlocutory appeal procedures deprives this Court of jurisdiction.
Based on the foregoing, the State’s motion to dismiss this pro se, premature
appeal is hereby granted. The appeal is DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
10/18/2016
Clerk’s Office, 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.