State v. Roddrick C. Gardner ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
February 14, 2018
The Court of Appeals hereby passes the following order:
A17A1636. THE STATE v. GARDNER
Pursuant to OCGA § 5-7-1 (a) (5), the State filed this pre-trial direct appeal
from the trial court’s order excluding evidence that the State sought by motion to use
at the trial of Roddrick C. Gardner on charges that he violated provisions of OCGA
§ 40-6-391.
OCGA § 5-7-1 (a) (5) provides that:
An appeal may be taken by and on behalf of the State of Georgia from
the superior courts, state courts, and juvenile courts and such other
courts from which a direct appeal is authorized to the Court of Appeals
or the Supreme Court in criminal cases and adjudication of delinquency
cases . . . [f]rom an order, decision, or judgment excluding any other
evidence to be used by the state at trial on any motion filed by the state
or defendant at least 30 days prior to trial and ruled on prior to the
impaneling of a jury or the defendant being put in jeopardy, whichever
occurs first, if: (A) Notwithstanding the provisions of Code Section
5-6-38, the notice of appeal filed pursuant to this paragraph is filed
within two days of such order, decision, or judgment; and (B) The
prosecuting attorney certifies to the trial court that such appeal is not
taken for purpose of delay and that the evidence is a substantial proof of
a material fact in the proceeding.
Nothing in the record shows that the State complied with the requirement for appeal
set forth in subsection (B) that “[t]he prosecuting attorney certifies to the trial court
that such appeal is not taken for purpose of delay and that the evidence is a
substantial proof of a material fact in the proceeding.” Accordingly, the State has
failed to comply with the requirements for an appeal pursuant to OCGA § 5-7-1 (a)
(5), and the appeal is DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
02/14/2018
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.