Samuel Prior v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 22, 2019
The Court of Appeals hereby passes the following order:
A20I0023. SAMUEL PRIOR v. THE STATE.
On July 1, 2019, the trial court entered an order denying a motion to suppress
filed by Samuel Prior. A certificate of immediate review was entered on August 8,
2019, and Prior filed this application for interlocutory appeal on August 15, 2019.
We, however, lack jurisdiction.
Under OCGA § 5-6-34 (b), a party may request interlocutory review only if the
trial court certifies within ten days of entry of the order at issue that immediate review
should be had. A timely certificate of immediate review is a jurisdictional
requirement. See Von Waldner v. Baldwin/Cheshire, Inc., 133 Ga. App. 23, 24 (2)
(209 SE2d 715) (1974). Here, the certificate of immediate review was entered 38
days after the entry of the order Prior seeks to appeal. If the certificate of immediate
review is not entered within the prescribed ten-day period, it is untimely, and the
party seeking review must wait until the final judgment to appeal. See OCGA § 5-6-
34 (b); Turner v. Harper, 231 Ga. 175, 176 (200 SE2d 748) (1973).
Prior previously filed an interlocutory application, seeking to appeal the denial
of his motion to suppress, with a certificate of immediate review signed on July 3,
2019. See Case No. A19I0289. However, that application was dismissed because the
certificate of immediate review was signed by a different judge than the trial judge
without explanation. Prior v. the State, Case No. A19I0289 (decided August 1,
2019). The current certificate of immediate review was signed by the trial judge and
states “SO ORDERED, this 3rd day of July, NUNC PRO TUNC August 7, 2019.”
To the extent that the trial court intended to deem the August 7 order effective nunc
pro tunc to July 3, an untimely certificate of immediate review may not be remedied
by nunc pro tunc entry. See Whitlock v. State, 124 Ga. App. 599, 601 (1) (185 SE2d
90) (1971) (“A nunc pro tunc entry of a certificate for immediate review cannot
revive a right of appeal which has expired.”); see also Court of Appeals Rule 16 (d)
(prohibiting extensions of time in the filing of interlocutory applications). The
relevant date for determining the timeliness of the certificate is the date it was
entered, which in this case occurred 38 days after the entry of the order sought to be
appealed. See Van Schallern v. Stanco, 130 Ga. App. 687 (204 SE2d 317) (1974)
(“[A] certificate for the immediate review of a nonfinal or interlocutory judgment is
ineffective unless entered, i.e., filed with the clerk, within ten days after entry of the
judgment appealed from.”).
Accordingly, because the trial court did not enter the certificate of immediate
review within ten days of entry of the order at issue, we lack jurisdiction to consider
this application, which is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/22/2019
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.