This is an appeal by the defendant in a robbery case. After a jury trial ended in mistrial, the appellant sought a “Motion for Judgment Notwithstanding the Mistrial” on grounds that certain evidence should not have been admitted and the state’s case, without that evidence, is insufficient to support a verdict of guilty beyond a reasonable doubt. The appellant failed to obtain pursuant to OCGA § 5-7-2 (Code Ann. § 6-1002a) a certificate of immediate review of the trial court’s refusal to enter judgment notwithstanding the mistrial, as was done in Phillips v. State, 133 Ga. App. 461 (211 SE2d 411). The state, seeking our instruction and inviting “a definitive ruling on the merits ... voluntarily waives any objection it may have in regards to the [appeal] procedure.”
The state cannot do this. It is not within the state’s power to confer appellate jurisdiction, nor to waive the absence of it. See, e.g., Newton v. K. B. Property Mgt. of Ga., 166 Ga. App. 901 (306 SE2d 5);
Appeal dismissed.