Demetrius Morgan v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 12, 2019
The Court of Appeals hereby passes the following order:
A19A1197. DEMETRIUS MORGAN v. THE STATE.
A jury convicted Demetrius Morgan of one count of participation in criminal
street gang activity, two counts of armed robbery, one count of aggravated assault,
two counts of false imprisonment, one count of burglary in the first degree, and one
count of possession of a firearm during the commission of a felony. As part of his
amended motion for new trial, Morgan argued that the trial court should modify his
sentence pursuant to OCGA § 17-10-1 (f). The trial court reserved ruling on the
sentence modification request until after his direct appeal was resolved, but otherwise
denied the motion for new trial. Morgan then timely filed a notice of appeal. We,
however, lack jurisdiction.
Pursuant to OCGA § 5-6-34 (a) (1), a defendant has the right to directly appeal
a “final judgment[], that is to say, where the case is no longer pending in the court
below.” See also OCGA § 5-6-38 (a) (allowing a defendant to file a notice of appeal
within 30 days after entry of an order “overruling[] or otherwise finally disposing of
the motion” for new trial). Because the trial court reserved ruling on Morgan’s
sentence modification request, the court did not finally dispose of the motion for new
trial, and it remains pending below. Accordingly, we lack jurisdiction over this
appeal, which is hereby DISMISSED.
Upon entry of an order disposing of Morgan’s sentence modification request,
the superior court clerk is DIRECTED to retransmit Morgan’s appeal. Morgan need
not file a second notice of appeal as the prematurely filed notice will ripen upon entry
of the order finally disposing of the motion for new trial. See Livingston v. State, 221
Ga. App. 563, 564-568 (1) (472 SE2d 317) (1996).
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/12/2019
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.