State v. Clayton Wayne Ward ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 25, 2021
The Court of Appeals hereby passes the following order:
A22A0366. THE STATE v. CLAYTON WAYNE WARD.
In this pending traffic proceeding, the State filed a notice of appeal from the
superior court’s dismissal of its “Demand for Jury Trial.” For reasons explained
below, however, we lack jurisdiction over this appeal.
Clayton Wayne Ward was charged with several traffic offenses.1 Ward waived
formal arraignment and trial by jury and entered a plea of not guilty in probate court.
The State filed a “Demand for Jury Trial,” seeking to transfer the case to superior
court for a jury trial, which the probate court denied. The State then appealed to
superior court. The superior court dismissed the appeal, finding that it was an
impermissible interlocutory appeal from probate court, and transferred the case back
to probate court for further proceedings. This direct appeal followed.
As the Supreme Court has made clear, “[t]he State does not have a right of
appeal in criminal cases, except as provided by OCGA § 5-7-1.” Glenn v. State, 271
Ga. 604, 604 (1) (523 SE2d 13) (1999). And we are required to construe this statute
strictly against the State. See id. at 605 (1). OCGA § 5-7-1 (a) (1) permits the State
to file a direct appeal “[f]rom an order . . . setting aside or dismissing any indictment
. . . [or] accusation.” Although the State posits that this direct appeal is permitted
under OCGA § 5-7-1 (a) because the trial court order effectively dismissed an
accusation, the order did not dismiss the accusation. Rather, it dismissed the appeal
1
Ward was charged with violating OCGA § 40-6-391 (A) (1), driving under
the influence of alcohol; OCGA § 40-8-76.1, a seatbelt violation; and OCGA §
40-6-48, failure to maintain lane.
of an interlocutory probate court order denying the State’s demand for a jury trial in
superior court. OCGA § 5-3-2 (a) vests the superior court with appellate jurisdiction
over any probate court decision other than an order appointing a temporary
administrator, but an appeal under § 5-3-2 is available only from a final judgment.
See Driver v. State, 198 Ga. App. 643, 644 (402 SE2d 524) (1991) (no right of appeal
to the superior court lies from an interlocutory ruling in the probate court); Sears v.
State, 196 Ga. App. 207, 207 (396 SE2d 1) (1990) (same). The probate court’s order
here was not a final judgment as the case remains pending before that court.
Strict construction of OCGA § 5-7-1 (a) (1) does not permit us to extend a
direct appeal to an order such as this one dismissing an appeal of an interlocutory
probate court order. See Glenn, 271 Ga. at 605 (1). Accordingly, this appeal is hereby
DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
10/25/2021
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.