State v. Wheeler, 310 Ga. 72

March 15, 2017: an apartment fire killed tenant George Hughes; police identified Kamara Wheeler as an arson suspect; Wheeler was arrested March 18 and admitted starting the fire.
Wheeler was indicted for malice murder, felony murder (arson predicate), and multiple first-degree arson counts.
The State served a Rule 404(b) notice (Jan. 17, 2019) and an amended notice (Aug. 13, 2019) seeking to admit prior fires as evidence of motive/intent; the trial court held a hearing Aug. 26 and entered an order denying the State’s 404(b) “motion” on Sept. 3, 2019.
The State filed several premature/amended notices of appeal invoking the wrong statutory paragraph and did not file the prosecutor’s OCGA § 5-7-1(a)(5)(B) certification until Jan. 22, 2020—more than four months after the trial-court order.
The Georgia Supreme Court concluded the § 5-7-1(a)(5) requirements (including the two-day appeal deadline and the prosecutor’s certification) are jurisdictional; because the State’s (a)(5)(B) certification was untimely, the Court dismissed the appeal for lack of jurisdiction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether OCGA § 5-7-1(a)(5) requirements are jurisdictional	§ 5-7-1(a)(5) permits interlocutory appeals and its deadlines/certification are procedural, not jurisdictional	The statute’s timing and certification requirements are jurisdictional and must be satisfied to confer appellate jurisdiction	The Court held the (a)(5) requirements are jurisdictional
Whether the prosecutor’s (a)(5)(B) certification may be filed after the notice of appeal	The certification can be filed after a notice of appeal and cured later in the record	Certification must be made to the trial court before or with the (a)(5)(A) notice because the appeal is “taken” only when notice is filed and the certification must exist when the appeal is taken	The Court held the (a)(5)(B) certification must be filed before or with the (a)(5)(A) notice of appeal
Whether the State complied with § 5-7-1(a)(5) in this case	The State ultimately sought review under (a)(5) and filed a certification, so jurisdiction is proper	The State failed to make the required (a)(5)(B) certification in the required timeframe and filed wrong notices initially	The Court held the State failed to comply with (a)(5)(B) and dismissed the appeal for lack of jurisdiction

Duke v. State, 306 Ga. 171 (2019) (interlocutory-review statutory procedures are jurisdictional)
Fulton County v. State, 282 Ga. 570 (2007) (appealability conditions in statute are jurisdictional)
Gable v. State, 290 Ga. 81 (2011) (timeliness for filing notice of appeal is an absolute requirement)
Islamkhan v. Khan, 299 Ga. 548 (2016) (failure to comply with interlocutory-appeal statutory procedures defeats appellate jurisdiction)
Outen v. State, 289 Ga. 579 (2011) (appellate courts lack jurisdiction over appeals outside OCGA § 5-7-1(a))
Fed. Deposit Ins. Corp. v. Loudermilk, 305 Ga. 558 (2019) (statutory text and context guide interpretation)
Chambers v. State, 262 Ga. 200 (1992) (State’s appeal can divest trial court of jurisdiction)
McHugh Fuller Law Group, PLLC v. PruittHealth-Toccoa, LLC, 297 Ga. 94 (2015) (appellate record normally includes filings made as of the notice-of-appeal date)