Shakir Cole v. State ( 2022 )

FIFTH DIVISION
MCFADDEN, P. J.,
BROWN and MARKLE, 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.
https://www.gaappeals.us/rules
August 25, 2022
In the Court of Appeals of Georgia
A23A0101. COLE v. THE STATE.
MCFADDEN, Presiding Judge.
A jury found Shakir Cole guilty of five counts of child molestation but failed
to reach a verdict on a count alleging rape. The trial court then entered a judgment of
conviction and sentenced Cole on the child molestation counts and placed the rape
count on the dead docket. The trial court later denied Cole’s motion for new trial, and
Cole filed a notice of appeal from that order.
It appears from the record that the trial court had not disposed of the rape count
at the time Cole filed his notice of appeal. But the trial court subsequently certified
his ruling for immediate review, and Cole filed a separate, timely application for
interlocutory review with this court.
Cole now moves to withdraw his direct appeal, correctly stating that because
the rape count is on the dead docket, that count remains unresolved, the case remains
pending, and so we lack jurisdiction over the direct appeal. Cole acknowledges in the
motion that the direct appeal must be dismissed due to this jurisdictional infirmity.
As Cole notes, this case is controlled by Seals v. State, 311 Ga. 739 (860 SE2d
419) (2021). Our Supreme Court held in that decision that when a count of the
indictment is dead-docketed, the case remains pending below, so the provisions of
OCGA § 5-6-34 (a) (1) allowing a direct appeal from a final judgment do not apply.
Seals, 311 Ga. at 739. Rather, to pursue an appeal, the defendant must follow the
procedures for an interlocutory appeal, as Cole properly has done in a separate
proceeding before this court. See OCGA § 5-6-34 (b); Seals, 311 Ga. at 739. Under
these circumstances, we must dismiss his direct appeal. Seals, 311 Ga. at 379; Spears
v. State, 360 Ga. App. 776, 777 (861 SE2d 619) (2021).
We also note, as we did in another case dealing with this issue, that
[w]e share our Supreme Court’s concerns about the practical
consequences of Seals and join that Court’s invitation to the General
Assembly to consider “whether to amend OCGA § 5-6-34 (a) to allow
for immediate appeals in cases where the only non-resolved counts are
dead-docketed.” Id. at 749 (4). In the interim, we encourage our trial
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courts . . . to grant certificates of immediate review under OCGA § 5-6-
34 (b)[,]
Spears, 360 Ga. App. at 777, as the trial court did in this case.
Appeal dismissed. Brown and Markle, JJ., concur.
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