In the Interest Of: W.L., a Child ( 2016 )

FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
February 2, 2016
In the Court of Appeals of Georgia
A15A2247. IN THE INTEREST OF W. L., a child.
RAY, Judge.
On March 25, 2015, the Juvenile Court of Monroe County entered orders
adjudicating W. L., a minor, delinquent of various offenses, ordering him to pay
restitution, and transferring the case to the Juvenile Court of Peach County for final
disposition. W. L. filed a direct appeal from the restitution order. Because we find
that the order appealed was interlocutory, it is not appealable without compliance
with the interlocutory appeal procedure of OCGA § 5-6-34 (b). Accordingly, we
dismiss this appeal as premature because the case remains pending in the juvenile
court.
On March 25, 2015, W. L. rendered an admission in open court and was
adjudicated delinquent by the Juvenile Court of Monroe County for the offenses of
theft by receiving stolen property, fleeing and attempting to elude officers, and
reckless driving after he took a bus from a church and damaged it while attempting
to run away from his assigned group home. In its order, the Juvenile Court of Monroe
County acknowledged that W. L. was a resident of Peach County and transferred the
case to the Juvenile Court of Peach County for a final adjudication. On the same day,
the Juvenile Court of Monroe County entered an order finding that W. L. had caused
property damage and ordered that he pay $5,508.38 in restitution. W. L. argues on
appeal that the juvenile court erred in awarding restitution without first considering
evidence that he had no financial ability to pay the amount of restitution and no
prospect of being able to pay in the foreseeable future.
The State contends that this Court is without jurisdiction to consider W. L.’s
direct appeal because it arises, in part, from an order transferring the case to the
Juvenile Court of Peach County and, therefore, was not a final order. We agree.
Under Georgia law, an interlocutory transfer order may be converted into a
final appealable order only is if it falls under OCGA § 5-6-34 (a) (1), which provides
that
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[a]ppeals may be taken to the Supreme Court and the Court of Appeals
from the following judgments and rulings. . . : All final judgments, that
is to say, where the case is no longer pending in the court below, except
as provided in Code Section 5-6-35[.]1
(Emphasis supplied.) “The ‘in the court below’ language in OCGA § 5-6-34 (a) (1)
is generally used to refer to a trial court as distinguished from an appellate court.”
Lops v. Lops, 140 F.3d 927, 939 (V) (C) (11th Cir., 1998). Further, Georgia courts
have repeatedly held that transfer orders are not appealable orders under OCGA § 5-
6-34 (a) (1) because a case transferred from one trial court to another trial court is still
“pending in the court below.” See, e. g., Wright v. Millines, 212 Ga. App. 453, 453
(442 SE2d 304) (1994) (dismissing a direct appeal from the superior court’s order
transferring the case to the superior court of a different county, concluding that the
appeals were “premature as there is no final judgment and the case remains pending
in the trial court”); Griffith v. Ga. Bd. of Dentistry, 175 Ga. App. 533, 533 (333 SE2d
647) (1985) (dismissing a direct appeal from an order transferring the case from one
jurisdiction to another, concluding that “[t]he subject transfer order is not a final
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OCGA § 5-6-35 is not applicable in the present case.
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judgment as the case is still pending in the court below, albeit a different court from
the one ordering the transfer”).
This general rule that transfer orders are not “final appealable orders” may also
adhere when an order transfers a case to a different type of trial court below. In Fulton
County Dept. of Family & Children Svcs. v. Perkins, 244 Ga. 237, 237-238 (259 SE2d
427) (1978), a child’s former foster parents filed a complaint in the superior court
seeking to adopt the child and seeking a writ of habeas corpus returning the child to
their custody. The superior court dismissed all claims except the habeas petition and
transferred the case to the juvenile court, which had earlier dealt with matters relating
to custody of the child. The juvenile court then transferred the case back to the
superior court. DFACS appealed, contending that both transfer orders were final. Id.
at 238. Our Supreme Court disagreed and dismissed the appeal, finding that neither
order was final because despite the transfer of forum, “[a] transfer of a child custody
case is a continuation of that proceeding” and does not change the nature of the
proceeding. Id. at 239. Our Supreme Court distinguished the facts of Perkins from a
case wherein a criminal case is transferred from a juvenile court to a superior court
because “a transfer of a juvenile [to a superior court] for trial of a crime as an adult
is not a continuation of the same proceeding.” Id. See e. g., J. T. M. v. State, 142 Ga.
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App. 635, 635-636 (1) (236 SE2d 764) (1977) (order transferring juvenile criminal
proceeding to superior court is final for purposes of filing a direct appeal).
In the present case, W. L. filed a direct appeal from an order transferring the
case from the Juvenile Court of Monroe County to the Juvenile Court of Peach
County. This transfer order is not final because it is the continuation of the same
proceeding against W. L. Accordingly, we find that W. L.’s direct appeal is premature
as there is no final judgment and the case remains pending in the juvenile court
below. Therefore, the order from which W. L. seeks to appeal is interlocutory and not
appealable without compliance with the interlocutory appeal procedure of OCGA §
5-6-34 (b). Wright, supra.
Appeal dismissed. Barnes, P. J., and McMillian, J., concur.
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