*1 Jerry Singer, Buchanan, Bouis, Burch, & James E. amici curiae. v. LANE.
S03A0282. HOWARD (581 1) SE2d Hines, Justice. County Howard,
Paul Fulton has filed this prohibition. Finding from denial for a writ of matter, that this Court is without to address this we dis- miss. sought prosecute Larry McGinty felony The State on a indict- McGinty jury trial,
ment. objected. siding, waived his and the State Tipton pre- court, The trial the Honorable Bensonetta Lane objection. through then, overruled the The State’s State How- sought prevent Judge ard, a writ of Lane from con- ducting jury. Shortly the trial without a The writ denied. sought stay McGinty’s thereafter, the State this Court a granted. Subsequently, which this Court the State filed its notice of prohibition, from denial of the writ of and this docketed in this Court. upon inquire jurisdic- It is incumbent this Court to into its own (456 AT&T,
tion.
Collins
In OCGA 5-
(a),
7-1
appeal
set
has
forth
a limited
Tyson,
for the State in criminal cases. See State v.
272 (1)
(2001).
Moody
Accord
(2000); Berky
55,
SE2d
ruling sought
to be reversed does not fall
(a).1
provisions
argues
within the
5-7-1
Howard
(a) provides
that:
§ 5-7-1
appeal may
Georgia
An
supe-
be taken
and on behalf of the
from the
courts,
courts, City
Atlanta,
rior
state
Court of
and
courts
such
other
Appeals Georgia
courts from which a direct
is authorized to the Court of
Supreme
Georgia
adjudication
and the
Court of
in criminal
cases
of delin-
quency
following
cases
instances:
(1)
order, decision,
judgment setting
any
dismissing
From
or
or
aside
indict-
ment, accusation,
petition alleging
delinquent
or
a child
has committed a
act or
thereof;
any count
(2)
order, decision,
judgment arresting
From an
or
of conviction or
adjudication
delinquency upon legal grounds;
judgment sustaining
plea
bar,
or
a
or
motion
put
jeopardy;
when the defendant
not been
judgment suppressing
excluding
or
ille-
evidence
gally
excluding
any
drugs
seized
the results of
test for
alcohol
case of
upon prior
impaneling
motions made and ruled
or the defendant
separate
proceed-
that the
ing
is a
civil
appealable,
and that the
thereon is final and therefore
see
(a) (1),
inquiry.
OCGA 5-6-34
that does not end the
As we stated in
192) (1994),
underly-
Viewing proper light, this case in the it is clear that there is no jurisdiction in this Court. The trial court in a criminal case has made ruling issue, a defendant has waived a State has not with which the i.e., State takes that because the
jury place. a bench trial will take attempted directly appeal ruling to because it has right per- Rather, State, no to do so under OCGA 5-7-1. the in the attempted son the to avoid this statute and ruling through prohibition. has attacked the the device of a writ of underlying subject However, inasmuch as the matter is the criminal prosecution ruling therein, and a made and from which the State has appeal, no to must be dismissed.
Appeal dismissed. All the Justices concur. concurring.
CARLEY, Justice,
compelled
I am
to concur in
the dismissal
this case because
presently
§ 5-7-1,
worded,
as
does not authorize the State to
ruling that,
the trial court’s
without
the consent
the defend-
prosecution
right
jury
ant, the
does not have a
to a
trial in a criminal
validity
ostensibly
case. The
civil
in the
order
arises
context of a
by
for writ of
filed
the District
majority correctly
appellate jurisdiction generally
but,
notes,
as the
by
is determined
relief
matter rather than the
sought.
28, of Ga., v. State Benefield (2003) (prohibition sought by agencies having post-conviction sentencing authority). reluctantly. dismissal, I I must concur do so “The right by jury I, I, to trial shall remain inviolate. . . .”Art. Sec. Par. (a) provision
XI theof Ga. Const. of 1983. This constitutional does not purport jury only upon confer trial the defendant in a (3) (211 McCorquodale State, 369, case. See criminal SE2d 577) (1974) (trial required accept court not accused’s waiver (1) (25 trial); jury Palmer (1943) (defendant not entitled to insist trial court conduct a bench trial). jury “Before a waiver trial a criminal case can become government effective, the consent counsel and the sanction of the (Emphasis supplied.) court must be had. . . .” Patton v. United 854) (1930) (constru States, 281 U. S. LE SC law). ing ruling Therefore, federal trial believe that the court’s erroneously prosecution’s this case subordinates the “inviolate” con request stitutional of trial to the defendant’s for a bench Unfortunately, however, trial. is, that incorrect all like it *3 currently appellate previously are, insulated from review. I have pointed prevent out that the narrow confines of OCGA 5-7-1 can an potential impediment from a which is “no less of a justice” rulings appealable the administration of than are the now under that code section. Ritter v. 857) (1998) (Carley, concurring). again encourage J., permit to amend the statute so as to of all pre-trial rulings negatively impact adverse in a which properly effectively prose of the State to conduct the cution said case. May Decided 2003.
Reconsideration denied June Howard, Jr., Mallon, Paul L. District Marc A. Assistant appellant. for Attorney Baker, General, Pearson, Thurbert E. Assistant Attorney appellee. General, for