Sharon Bush Ellison v. State

• Court: Court of Appeals of Georgia
• Decided: June 26, 2018
• Docket: A18D0462
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ June 07, 2018

The Court of Appeals hereby passes the following order:

A18D0462. SHARON BUSH ELLISON v. THE STATE.

In the trial court, Sharon Bush Ellison filed a motion to stay proceedings based on her claim that the case should be removed to federal court. The trial court denied the motion and also declined to issue a certificate of immediate review. Ellison has filed an application for discretionary review in this Court,1 seeking to appeal the denial of her motion to stay. We, however, lack jurisdiction. The order that Ellison seeks to appeal is a non-final order, leaving the case pending before the trial court. See Grange Mut. Cas. Co. v. Riverdale Apartments, L.P., 218 Ga. App. 685, 686-687 (463 SE2d 46) (1995) (trial court’s order denying a motion to stay was interlocutory, as the action remained pending before the trial court). Consequently, Ellison was required to use the interlocutory appeal procedures to obtain appellate review. See OCGA § 5-6-34 (b); Boyd v. State, 191 Ga. App. 435, 435 (383 SE2d 906) (1989). Ellison’s failure to do so deprives us of jurisdiction over this application. See Bailey v. Bailey, 266 Ga. 832, 832-833 (471 SE2d 213) (1996). Additionally, Ellison failed to include a stamped “filed” copy of the trial court’s order as required by Court of Appeals Rule 31 (c). Without such a copy of the order, we cannot ascertain if the application was filed within 30 days of the day it was entered by the trial court clerk, which is a jurisdictional prerequisite. See OCGA § 5-6-35 (d); Boyle v. State, 190 Ga. App. 734 (380 SE2d 57) (1989).

1 Ellison, pro se, titled her application as one for interlocutory review. We construed her application as an application for discretionary review because she failed to include a certificate of immediate review with her application. Finally, to the extent Ellison’s application should be construed as an application for interlocutory review, Ellison’s failure to obtain a certificate of immediate review from the trial court deprives us of jurisdiction over this application. See Bailey, 266 Ga. at 832-833. Thus, absent a timely certificate of immediate review, we lack jurisdiction over this application, which is hereby DISMISSED. See Bailey, 266 Ga. at 833; Boyd, 191 Ga. App. at 435.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 06/07/2018 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.