Mark Green v. State

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 13, 2020
The Court of Appeals hereby passes the following order:
A21A0048. MARK GREEN v. THE STATE.
A jury found Mark Green guilty of aggravated child molestation (Count 1) and
child molestation (Count 2), and the superior court imposed a sentence of life in
prison on Count 1 and a concurrent 20-year prison term on Count 2. Green filed a
motion for a new trial, in which he raised several challenges to his convictions and
sentences. The superior court denied relief on all grounds but one – Green’s challenge
to his sentence for Count 2. As to that claim, the superior court agreed that Green
must be re-sentenced on Count 2 and ruled that, because Green “will be re-
sentenced,” his sentencing challenge is “moot.” Green has filed this timely appeal
from the superior court order that disposed of his motion for a new trial. We lack
jurisdiction.
Under OCGA § 5-6-34 (a) (1), appeals generally may be taken from “[a]ll final
judgments, that is to say, where the case is no longer pending in the court below.”
Absent a new sentencing order, Green’s sentencing challenge is not moot, and this
case remains pending before the superior court. Consequently, Green was required
to use the interlocutory appeal procedures – including obtaining a certificate of
immediate review from the superior court – to appeal the order disposing of his
motion for a new trial. See OCGA § 5-6-34 (b); accord Littlejohn v. State, 185 Ga.
App. 31, 32 (363 SE2d 327) (1987) (this Court lacks jurisdiction to entertain an
appeal over a criminal case that is still pending before the trial court); cf. Keller v.
State, 275 Ga. 680, 681 (571 SE2d 806) (2002) (a criminal case is not final until a
sentence has been entered on each conviction). Green’s failure to comply with the
interlocutory appeal procedures deprives us of jurisdiction over this premature direct
appeal, which is hereby DISMISSED. See Crane v. State, 281 Ga. 635, 635-637 (641
SE2d 795) (2007); Boyd v. State, 191 Ga. App. 435, 435 (383 SE2d 906) (1989);
accord Littlejohn, 185 Ga. App. at 32.
Upon entry of a new sentencing order, the superior court clerk is DIRECTED
to re-transmit the case to this Court for re-docketing. Green need not file a second
notice of appeal, as his prematurely filed notice of appeal will ripen upon entry of a
new written sentence. See Perry v. State, 329 Ga. App. 121, 121 (764 SE2d 178)
(2014); 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,____________________
08/13/2020
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.