Jafney Thelusma v. State

• Court: Court of Appeals of Georgia
• Decided: August 23, 2019
• Docket: A19A2306
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ August 23, 2019

The Court of Appeals hereby passes the following order:

A19A2306. JAFNEY THELUSMA v. THE STATE.

A jury found Jafney Thelusma guilty of three counts of violating the Street Gang and Terrorism Prevention Act (Counts 3-5) and one count each of fleeing or attempting to elude an officer (Count 6), theft by receiving stolen property (Count 7), possession of a firearm by a first offender probationer (Count 8), discharging a gun near a highway or street (Count 9), and driving with a suspended license (Count 10). The superior court entered a written sentence on these convictions, and Thelusma filed a motion for a new trial, in which, inter alia, he challenged the sufficiency of the evidence on several of the convictions. The superior court denied the motion for a new trial as to Counts 6 and 9-10, but granted the motion as to Counts 3-5 and 7-8. The court subsequently granted the State’s motion for entry of an order of nolle prosequi as to Counts 3-5 and 7-8. The court did not, however, enter a new written sentence. Thelusma has filed this timely appeal from the superior court order that disposed of his motion for a new trial. 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.” Here, absent a new sentencing order, the case remains pending in the superior court. Cf. Keller v. State, 275 Ga. 680, 680 (571 SE2d 806) (2002). Consequently, we lack jurisdiction over this premature appeal, which is hereby DISMISSED. Upon entry of a new sentencing order, the superior court clerk is DIRECTED to re-transmit the case to this Court for re-docketing. Thelusma 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,____________________ 08/23/2019 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.