Richard Johnston v. State

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________________________________ January 29, 2024

The Court of Appeals hereby passes the following order:

A24A0253. RICHARD JOHNSTON v. THE STATE.

Richard Johnston appeals from his convictions for child molestation and related crimes as well as the denial of his motion for new trial. We, however, lack jurisdiction, and this appeal is therefore DISMISSED. At trial in this case, the jury could not reach a verdict on one count of rape, and the trial court declared a mistrial. The trial court subsequently entered an order placing the rape count on the dead docket and entered a purported final judgment. Our Supreme Court recently held, however, that when a count of the indictment is dead-docketed, the case remains pending below, so the provisions of OCGA § 5-6-34 (a) (1) allowing a direct appeal from a final judgment do not apply. Seals v. State, 311 Ga. 739 (860 SE2d 419) (2021), overruled in part on other grounds by Gonzales v. State, 315 Ga. 661 (884 SE2d 339) (2023). Rather, to pursue an appeal, the defendant must follow the procedures for an interlocutory appeal under OCGA § 5-6-34 (b), which Johnston did not do. See id. “Because [Johnston]’s case is pending below yet he failed to follow the interlocutory appeal procedures, we must dismiss his appeal.” Spears v. State, 360 Ga. App. 776, 777 (861 SE2d 619) (2021).

Court of Appeals of the State of Georgia C l e r k ’ s O f f i c e , Atlanta,_______________________________________ 01/29/2024 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.