Samuel Prior v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 01, 2019
The Court of Appeals hereby passes the following order:
A19I0289. SAMUEL PRIOR v. THE STATE.
Samuel Prior seeks immediate review of the trial court’s order denying his
motion to suppress the results of a state-administered breath test. Along with his
application, Prior has submitted a certificate of immediate review signed by a
different judge than the one who signed the denial order. In light of this unexplained
discrepancy, we lack jurisdiction to consider the application.
Under OCGA § 5-6-34 (b), a party may apply for interlocutory appellate review
“[w]here the trial judge in rendering an order, decision, or judgment, not otherwise
subject to direct appeal, . . . certifies within ten days of entry thereof that the order,
decision, or judgment is of such importance to the case that immediate review should
be had.” (Emphasis supplied.) By its terms, the statute requires the certificate of
immediate review to be signed by “the trial judge,” not by a different judge. Here, the
denial order was signed by Judge Jason B. Thompson, but the certificate of immediate
review was signed by “T. Kyle King, Judge, Pro Hac.” Nothing in the application
materials explains why Judge King signed the certificate instead of Judge Thompson,
or indicates that Judge King was “the trial judge” when he did so. Compare Hourin
v. State, 301 Ga. 835, 837 (1) (804 SE2d 388) (2017) (evidence showed that judge
who signed underlying order was acting pursuant to an assignment order that had
expired, and judge who signed certificate was now “the trial judge” for the purpose
of OCGA § 5-34 (b)).
Because Prior’s certificate of immediate review does not comply with OCGA
§ 5-6-34 (b), this application is hereby DISMISSED. See Mauer v. Parker Fibernet,
LLC, 306 Ga. App. 160 (701 SE2d 599) (2010).
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/01/2019
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.