February 12, 2015
Recusal. Paulding Superior Court. Before Judge Osborne.
Dick Donovan, District Attorney, Steven J. Messenger, Assistant District Attorney, for appellant.
Gary O. Walker, for appellee.
PHIPPS, Chief Judge. McMillian, J., concurs. Ellington, P. J., concurs fully and specially.
Phipps, Chief Judge.
Before Corey Osborne's arraignment in Paulding County Superior Court Case No. 14-CR-000256, the district attorney filed a motion to recuse the judge assigned to the case. Without referring the motion for a hearing before a different judge, the assigned judge dismissed the motion, concluding that it was " legally insufficient on its face." The state appeals, contending that the motion to recuse " should have been heard by a different [j]udge." For the following reasons, this appeal is dismissed.
In its appeal brief, the state acknowledges that pursuant to OCGA § § 5-7-1 and 5-7-2, it was required to obtain a certificate of immediate review to appeal the trial court's ruling; but the state apparently did not attempt to obtain the certificate in this case, asserting that " under circumstances such as the one in this case[] it would be impossible for the State to procure a certificate of immediate review." Thus, the state [330 Ga.App. 689] " seeks to invoke jurisdiction of this Court pursuant to the 'collateral order' doctrine."  The state argues that if " strict construction of the State's right to appeal trumps the collateral order doctrine, ... the State's right to due process is subject to infringement and ... there would be no possible review after acquittal."
1. The order is not reviewable pursuant to the statutory provisions governing the state's appeal of the denial of a motion to recuse a judge, because the case is still pending in the court below and the state failed to obtain a certificate of immediate review from the trial court and failed to obtain permission to file an interlocutory appeal from this court.
In State v. Martin, the Supreme Court of Georgia recognized that " [t]here is no right to appeal granted by either the State or Federal Constitutions to ... the defendant or the State in criminal cases. Instead, the right to appeal depends upon statute."  The Supreme Court also recognized that " the State may not appeal any issue in a criminal case, whether by direct or discretionary appeal, unless that issue is listed in OCGA § 5-7-1."  Although the denial of a motion by the state to recuse a judge is listed in OCGA § 5-7-1 (a) (9) as a decision the state may appeal, the state is not exempt from the requirement of obtaining a certificate of immediate review from the trial court and obtaining permission to file an interlocutory appeal from this court in order to appeal
such an order. OCGA § 5-7-2 (b) exempts several types of orders, decisions, and judgments listed in OCGA § 5-7-1 (a) from the requirement of obtaining a certificate of immediate review, but a state's appeal from the denial of a motion to recuse a judge is not one of them.
Moreover, OCGA § 5-7-2 (c) specifically provides that " [f]or purposes of this Code section, the granting of a motion for new trial [330 Ga.App. 690] or an extraordinary motion for new trial shall be considered a final order," (and, pursuant to OCGA § 5-7-2 (a), an order, decision, or judgment that is final is directly appealable); but it sets forth no such provision for the denial of a motion to recuse a judge. In Ritter v. State, the Supreme Court stated that " a decision on the recusal of the trial judge is an interlocutory matter that can never dispose of a criminal case," as the trial court has rendered no decision that " either expressly or implicitly resolves the case by preventing further prosecution of the criminal charge in superior court." 
In this case, the state acknowledges in its appeal brief that subsequent to the 2004 Martin decision, the Georgia General Assembly amended OCGA § 5-7-1 and added the denial of a state's motion to recuse a judge to the list of appealable matters, and that the General Assembly " has not, however, to this date," amended OCGA § 5-7-2 to designate the denial of a state's motion to recuse a judge as an order, decision, or judgment not requiring the trial judge to certify the ruling for immediate review. OCGA § 5-7-2 has been amended three times -- in 2011, 2012, and 2013. " [I]n ascertaining the purpose of legislation, courts may look to the history of the legislation on the subject matter of the particular statute."  In doing so here, we conclude that the relevant statutory history provides firm support for the conclusion that the General Assembly has decided that the state's appeal from the denial of a motion to recuse a judge is reviewable under the interlocutory appeal procedure.
Compliance with the applicable statutory provisions is considered an absolute requirement to confer jurisdiction on an appellate [330 Ga.App. 691] court to hear an appeal, and courts have " no authority to create equitable exceptions to [such] jurisdictional requirements imposed by statute."  Furthermore, the state has not shown that compliance with the statutory requirement for appeal should be excused, as " necessary to avoid or remedy a constitutional
violation concerning the appeal,"  or that the circumstances attendant in this case " rise to a constitutional level." 
2. The state does not cite any Georgia case whereby jurisdiction has been conferred upon either this court or the Supreme Court in a state's appeal of a criminal case pursuant to the collateral order doctrine, and we found none. Indeed, " [t]he authority of the State to appeal an adverse ruling in a criminal case is controlled by statute" ;  OCGA § 5-7-2 describes which of those matters appealable by the state under OCGA § 5-7-1 are appealable by direct appeal and which are appealable by discretionary appeal. And the Supreme Court of Georgia has specifically stated that " appeals from the ... denial of the State's motion to recuse are governed by OCGA § 5-7-1 et seq."  The state's reliance on Commonwealth v. Stevenson, a [330 Ga.App. 692] Pennsylvania case, is misplaced. Besides the fact that this court is not bound by the holding in that Pennsylvania case, in Commonwealth, the Pennsylvania rules of appellate procedure specifically provided that " [a]n appeal may be taken as of right from a collateral order of an administrative agency or lower court."  The state has not cited any such Georgia rule or statutory provision, and we decline to apply the collateral order doctrine to this state's appeal when a procedure to appeal the type of order at issue is expressly provided for by statute but was not followed in this case. Applying the collateral order doctrine would render meaningless those parts of the existing statutory scheme which govern the state's appeal of the denial of a motion to recuse a judge.
The Supreme Court and this court have held that " the statutes providing for appeals by the State in criminal cases should be construed strictly against the State." 
" The State having failed to obtain a certificate of immediate review pursuant to OCGA § 5-7-2, the attempted appeal is nugatory and does not activate the appellate jurisdiction of this court. Accordingly we must dismiss the (S)tate's appeal." 
McMillian, J., concurs. Ellington, P. J., concurs fully and specially.
CONCUR BY: ELLINGTON
Ellington, Presiding Judge, concurring fully and specially.
I concur fully in the majority opinion. I write separately to point out that the General Assembly's failure to include an order denying a motion by the State to recuse or disqualify a judge as set forth in OCGA § 5-7-1 (a) (9) among those classes of cases for which a certificate of immediate review shall not be required pursuant to OCGA § 5-7-2 (b) may have been an oversight. The requirement that a certificate of immediate review be obtained from the trial court before appealing such an order raises the specter that a recalcitrant judge [330 Ga.App. 693] could entirely thwart the right of appeal the legislature intended to grant in enacting OCGA § 5-7-1 (a) (9). See State v. Evans, 282 Ga. 63, 64 (646 S.E.2d 77) (2007) (" OCGA § 5-7-1 (a) does not purport to authorize the State to appeal a judgment of acquittal[.]" ); State v. Morrell, 281 Ga. 152, 153 (2) (635 S.E.2d 716) (2006) (Because the State cannot appeal after an acquittal, it can " never seek to rectify an incorrect suppression order if a defendant is acquitted[.]" For this reason, the legislature granted the State the right to an immediate appeal of suppression orders, " so that an error committed by a trial judge, which otherwise might work a miscarriage of justice, can be corrected on appeal, and before attachment of jeopardy." ) (punctuation and footnote omitted). The remedy for any such oversight, however, lies with the General Assembly. See State v. Evans, 282 Ga. at 65 (The creation of any right of appeal for the State " is a function for the General Assembly," not for the courts.).