Jimmy Wallace v. State

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ April 20, 2026

The Court of Appeals hereby passes the following order:

A26A0736. JIMMY WALLACE v. THE STATE.

After being convicted of drug trafficking and other crimes, Jimmy Wallace filed a timely motion for new trial. Later that same day, Wallace filed a motion to withdraw the pending motion for new trial, and the next day, he filed a notice of appeal to this Court. We lack jurisdiction because the appeal is premature.

Under OCGA § 5-6-34(a)(1)(B), 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[.]”“A notice of appeal must be filed within 30 days of the judgment being appealed, or, if a motion for new trial is filed within 30 days of the judgment, ‘the notice shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.’” Hann v. State, 292 Ga. App. 719, 719(1) (665 SE2d 731) (2008) (quoting OCGA § 5-6-38(a)).

Here, the record contains no indication that the trial court has ruled on Wallace’s motion for new trial or his motion to withdraw that motion. Accordingly, the case remains pending below, and this appeal is premature. See Porter v. State, 367 Ga. App. 70, 72(1) & n.9 (885 SE2d 51) (2023) (the pendency of a motion for new trial divests the appellate court of jurisdiction, absent compliance with the interlocutory appeal procedure of OCGA § 5-6-34(b)); Hann, 292 Ga. App. at 720(1) (same). Wallace’s pending motion to withdraw his motion for new trial does not change this analysis. See Heard v. State, 274 Ga. 196, 197–98(1) (552 SE2d 818) (2001) (holding that the trial court must grant, deny, or otherwise finally dispose of a motion for new trial to start the appellate clock under OCGA § 5-6-38). Consequently, we lack jurisdiction over this premature appeal, which is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 04/20/2026

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.