Stewart Cabrera-Zamarripa v. State

• Court: Court of Appeals of Georgia
• Decided: August 11, 2023
• Docket: A23A1253
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ August 11, 2023

The Court of Appeals hereby passes the following order:

A23A1253. STEWART CABRERA-ZAMARRIPA v. THE STATE.

Following a May 2022 jury trial, Stewart Cabrera-Zamarripa was found guilty of armed robbery (Count One), two counts of aggravated assault (Counts Two and Three), theft by taking (Count Four), and possession of a firearm during the commission of a felony (Count Five). At the sentencing hearing, the trial court merged Counts Two and Four into Count One. Thereafter, Cabrera-Zamarripa filed a motion for new trial, which the trial court granted in part and denied in part on March 20, 2023. Specifically, the trial court ruled that Count Three should have also merged into Count One and that the defendant would be resentenced at a later date. The trial court denied the motion as to all other grounds. Prior to resentencing, Cabrera-Zamarripa filed the notice of appeal underlying the current matter. Pursuant to OCGA § 5-6-34 (a) (1), a defendant has the right to directly appeal a “final judgment[], that is to say, where the case is no longer pending in the court below.” A “case is not final and ripe for appeal until a sentence has been entered on each count of the indictment that was the subject of the trial.” Keller v. State, 275 Ga. 680, 681 (571 SE2d 806) (2002). Because Cabrera-Zamarripa has not yet been re- sentenced, we lack jurisdiction over this appeal, and it is hereby DISMISSED. Upon entry of the re-sentencing order, the superior court clerk is DIRECTED to retransmit Cabrera-Zamarripa’s appeal. Cabrera-Zamarripa need not file a second notice of appeal, as the prematurely filed notice of appeal will ripen upon entry of the sentence. See McCulley v. State, 273 Ga. 40, 43 n.3 (4) (537 SE2d 340) (2000). Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 08/11/2023 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.