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State v. Osborne

Court of Appeals of Georgia

February 12, 2015

THE STATE
v.
OSBORNE

Recusal. Paulding Superior Court. Before Judge Osborne.

Appeal dismissed.

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.

OPINION

Page 116

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[[1]] 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." [2] 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,[3] 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." [4] 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." [5] 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

Page 117

such an order.[6] OCGA § 5-7-2 (b)[7] 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)[8] 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,[9] 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 ...


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