Stewart v. State

Court of Appeals of Georgia

Stewart v. State

522 S.E.2d 743, 240 Ga. App. 154, 99 Fulton County D. Rep. 3589, 1999 Ga. App. LEXIS 1249

Court of Appeals of Georgia·Decided September 24, 1999·No. A00A0183, A00A0184·Published·Cited by 8 cases

Opinion

McMurray, Presiding Judge.

Freddie Stewart was charged in separate indictments in Tattnall County and Bryan County, alleging the unlawful disposition of proceeds received from preneed funeral service contracts, in that Stewart failed to maintain such funds unimpaired in an authorized state bank as required by OCGA § 43-18-96. Stewart moved to dismiss the indictments, contending the statute under which he was charged was unconstitutional. Both the Tattnall Superior Court and the Bryan Superior Court denied the motions to dismiss. Stewart filed notices of direct appeal to the Supreme Court of Georgia, which concluded its subject matter jurisdiction had not been invoked and transferred the cases to the Court of Appeals of Georgia. Held:

The denial of each motion to dismiss the respective indictment is not a final judgment, directly appealable under OCGA § 5-6-34 (a) (1), but is only an interlocutory order. Hicks v. State, 234 Ga. 142, 143 [155]*155(214 SE2d 658). Although Stewart obtained certificates of immediate review from the superior court, he did not pursue the mandatory application procedures of OCGA § 5-6-34 (b) for interlocutory appeal. Overruled exceptions to the charging instrument¹ are reviewed only under the interlocutory procedures of OCGA § 5-6-34 (b) or after a conviction. Ivey v. State, 210 Ga. App. 782, 783 (437 SE2d 810). We are without jurisdiction to consider the merits of these direct appeals from interlocutory orders, and so Case Nos. A00A0183 and A00A0184 must be dismissed.

Decided September 24, 1999. Salter & Shook, Mitchell M. Shook, for appellant. J. Thomas Durden, Jr., District Attorney, Thurbert E. Baker, Attorney General, for appellee.

Appeals dismissed.

Johnson, C. J, and Phipps, J., concur.

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McMurray, Presiding Judge.

Freddie Stewart was charged in separate indictments in Tattnall County and Bryan County, alleging the unlawful disposition of proceeds received from preneed funeral service contracts, in that Stewart failed to maintain such funds unimpaired in an authorized state bank as required by OCGA § 43-18-96. Stewart moved to dismiss the indictments, contending the statute under which he was charged was unconstitutional. Both the Tattnall Superior Court and the Bryan Superior Court denied the motions to dismiss. Stewart filed notices of direct appeal to the Supreme Court of Georgia, which concluded its subject matter jurisdiction had not been invoked and transferred the cases to the Court of Appeals of Georgia. Held:

The denial of each motion to dismiss the respective indictment is not a final judgment, directly appealable under OCGA § 5-6-34 (a) (1), but is only an interlocutory order. Hicks v. State, 234 Ga. 142, 143 [155]*155(214 SE2d 658). Although Stewart obtained certificates of immediate review from the superior court, he did not pursue the mandatory application procedures of OCGA § 5-6-34 (b) for interlocutory appeal. Overruled exceptions to the charging instrument¹ are reviewed only under the interlocutory procedures of OCGA § 5-6-34 (b) or after a conviction. Ivey v. State, 210 Ga. App. 782, 783 (437 SE2d 810). We are without jurisdiction to consider the merits of these direct appeals from interlocutory orders, and so Case Nos. A00A0183 and A00A0184 must be dismissed.

Decided September 24, 1999. Salter & Shook, Mitchell M. Shook, for appellant. J. Thomas Durden, Jr., District Attorney, Thurbert E. Baker, Attorney General, for appellee.

Appeals dismissed.

Johnson, C. J, and Phipps, J., concur.

Stewart v. State, 522 S.E.2d 743, 240 Ga. App. 154, 99 Fulton County D. Rep. 3589, 1999 Ga. App. LEXIS 1249 (Ga. Ct. App. 1999).

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