Francis Gerard Kallon v. State

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ August 14, 2018

The Court of Appeals hereby passes the following order:

A18A2005. FRANCIS GERARD KALLON v. THE STATE.

After a bench trial, Francis Gerard Kallon was convicted of DUI. He appeals from his judgment of conviction, contending that the trial court erred by refusing to suppress the results of his breath test because, although he was advised of the Implied Consent Notice, he was not advised of his Miranda1 rights. The State has filed a motion to transfer the appeal to the Supreme Court pursuant to its jurisdiction over constitutional questions. The Supreme Court has exclusive appellate jurisdiction in “all cases in which the constitutionality of a law, ordinance, or constitutional provision has been drawn in question.” Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1); see also Zarate- Martinez v. Echemendia, 299 Ga. 301, 304 (2) (788 SE2d 405) (2016). Here, in denying Kallon’s motions to exclude this evidence, the trial court considered his challenges to the constitutionality of OCGA § 40-5-67.1 (b) and OCGA § 40-6-392. Consequently, jurisdiction over this appeal may lie in the Supreme Court. As the Supreme Court has the ultimate responsibility for determining appellate jurisdiction, see Saxton v. Coastal Dialysis & Med. Clinic, 267 Ga. 177, 178 (476 SE2d 587) (1996), the State’s motion is GRANTED and this case is hereby TRANSFERRED to the Supreme Court.

1 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 08/14/2018 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.