State v. Jarvis Taylor

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 10, 2015
The Court of Appeals hereby passes the following order:
A15I0258. STATE OF GEORGIA v. JARVIS TAYLOR.
The State filed a motion to recuse the trial judge in this criminal case based
upon comments she made during jury instructions at the close of the evidence. The
judge denied the motion, as well as the State’s subsequent motion for reconsideration.
Taylor was later convicted and sentenced, after which he filed a motion for new trial
that remains pending below. The State then filed a renewed motion to recuse, which
the trial judge denied. At the State’s request, the judge certified her order for
immediate review, and the State filed this interlocutory application. We, however,
lack jurisdiction.
“There is no right to appeal granted by either the State or Federal Constitutions
to . . . the State in criminal cases. Instead, the right to appeal depends upon statute.”
State v. Martin, 278 Ga. 418, 418-419 (603 SE2d 249) (2004) (citation and
punctuation omitted). “[T]he State may not appeal any issue in a criminal case,
whether by direct or discretionary appeal, unless that issue is listed in OCGA § 5-7-
1.” State v. Osborne, 330 Ga. App. 688, 689 (1) (769 SE2d 115) (2015) (citation and
punctuation omitted); see also State v. Johnson, 292 Ga. 409, 410-411 (738 SE2d 86)
(2013).
Under OCGA § 5-7-1 (a) (9), the State may appeal “[f]rom an order, decision,
or judgment denying a motion by the state to recuse or disqualify a judge made and
ruled upon prior to the defendant being put in jeopardy.”1 (Emphasis supplied.) “A
1
Such an appeal must comply with the interlocutory appeal procedures, which
the State followed here. See Osborne, supra at 689-690.
defendant is placed in jeopardy when, in a court of competent jurisdiction with a
sufficient indictment, he has been arraigned, has pled and a jury has been impaneled
and sworn.” Herrington v. State, 315 Ga. App. 101, 102 (1) (726 SE2d 625) (2012)
(citation and punctuation omitted). Here, the State filed its renewed motion to recuse
long after Taylor had been put in jeopardy – indeed, after he had been convicted.2
Thus, the order denying the motion does not fall within OCGA § 5-7-1 (a) (9), and
the State has no right to appeal it.
This application is accordingly DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
08/10/2015
Clerk’s Office, Atlanta,____________________
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.
2
The State’s first motion to recuse also was filed after Taylor had been put in
jeopardy.