402 S.E.2d 524 | Ga. Ct. App. | 1991
By way of accusation, appellant was charged with driving under the influence. He waived his right to a jury trial and agreed to a trial before the probate court. The trial before the probate court was continued and, upon its recommencement, appellant filed a plea of double jeopardy. When the probate court overruled this plea, appellant filed a direct appeal to the superior court. The superior court dismissed the appeal and appellant now appeals to this court from the superior court’s order dismissing his direct appeal from the probate court.
Appellant relies upon Patterson v. State, 248 Ga. 875 (287 SE2d
“ ‘Where either appeal or certiorari is a proper remedy the movant may elect which remedy he will pursue.’ ” (Emphasis supplied.) Stephens v. Bell, 41 Ga. App. 353, 356 (153 SE 99) (1930). However, an appeal is clearly not a proper remedy to secure review of the probate court’s interlocutory order and, insofar as appellant did not pursue certiorari, the applicability of the holding in Patterson v. State, supra, in the context of that procedure cannot be addressed in the instant appeal. Our holding is necessarily limited to affirming the superior court’s dismissal of appellant’s unauthorized appeal from the probate court’s interlocutory order. “It is very obvious that, where the statute refers to an appeal from any decision of the [probate] court . . ., it refers only to a decision of the entire case. Accordingly, the ruling of the [probate] court . . . [overruling appellant’s plea of double jeopardy] was not a decision of the case and was not a decision authorizing an appeal to the superior court.” Hartley v. Holwell, supra at 728.
Judgment affirmed.