Darrious Mathis v. State

• Court: Court of Appeals of Georgia
• Decided: January 18, 2022
• Docket: A21A1455
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 18, 2022

The Court of Appeals hereby passes the following order:

A21A1455. DARRIOUS MATHIS v. THE STATE.

Darrious Mathis was charged in a seven-count indictment with crimes including kidnapping, false imprisonment, and aggravated assault. Count 7 of the indictment, charging Mathis with possession of a firearm by a first offender probationer, was severed from the other counts at trial. The jury rendered guilty verdicts on Counts 1 through 6, and the trial court sentenced Mathis on those counts. Count 7 was never presented to the jury. More than a year after sentencing, the trial court entered an order placing Count 7 on the court’s Administrative Dead Docket, and the record before us shows no further proceedings as to that count. Subsequently, the trial court denied Mathis’s amended motion for new trial. Mathis now seeks to appeal the order denying this motion. We lack jurisdiction. “[W]hen a count is dead-docketed, it remains pending below even if it is not being actively litigated. And our precedent unequivocally holds that when a count is pending below, so is the case of which that count is a part.” Seals v. State, 311 Ga. 739, 748 (3) (b) (860 SE2d 419) (2021). When a case remains pending below, it “cannot be appealed as a final judgment.” Id. at 739. Instead, it may be appealed only by obtaining a certificate of immediate review, and the failure to do so requires dismissal of the appeal. Id. at 739, 748 (3) (b); see also OCGA § 5- 6-34 (b). Here, because Count 7 remains pending below, the case is not final, and the order denying Mathis’s amended motion for new trial is not a final judgment that is appealable under OCGA § 5-6-34 (a) (1). Because Mathis did not obtain a certificate of immediate review, his appeal must be dismissed. See Seals, 311 Ga. at 739, 748 (3) (b).

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 01/18/2022 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.