*1 See Owens (3) fered. McMillian, J., Barnes, J., concur. P.
Judgment affirmed. February Decided Luttrell,
James K. appellant. for Fortner, Ackley, Rachel D. Assistant Attorney, K. District Brian Attorney, District appellee.
A14A1975. THE STATE v. OSBORNE.
(769 SE2d Phipps, Judge. Chief arraignment Paulding County Super- in Corey
Before Osborne’s 14-CR-000256, attorney the filed a motion ior Court Case No. district referring to the case. Without the motion judge assigned to recuse the judge different the dismissed hearing assigned for a before a motion, it on its face.” concluding “legally the that was insufficient that the motion to recuse “should have appeals, contending The state reasons, following For the this [j]udge.” been heard a different is dismissed. brief, acknowledges pursuant In its the state that of immediate 5-7-1 and it was to obtain certificate §§ did ruling; apparently review to the trial court’s but the state the that “under attempt asserting not to obtain certificate this the it be impossible circumstances such as one this would case[1] Thus, a certificate of immediate review.” the state procure the State asserted, Assigned Judge,” upon In its “Motion to Recuse the state based an attached affidavit, perception impartial person minded and have a that “afair would reasonable [the affiant, impartiality Attorney, judge] trial court lacks toward the District who is the Chief affidavit, Attorney, Attorney.” the Chief Assistant District and the Officeof the District months, Attorney period judge averred that within a ofless than two Assistant District reluctantly it discoveredthat had recused from a criminal case the state’s motion after was judge pending given had a ride in his vehicle to the defendant in the case which was before parte, suppressing judge; judge signed an order ex evidence in another criminal the case, had case; recuse from the had made comments and later denied the state’s motion to Office, Attorney’s intending prosecutor the District after the to be sarcastic toward and to embarrass represented by Attorney in which the state was the District asked that all matters reporter reporter; judge had stated that because his court was ‘less be taken down a court happy Attorney, having represented the District with to take down all matters in which the state was too; “unhappy hearing when the was and the refused to conduct a applicant qualified reporter present not to take down a matter as to whether an court “seeks to invoke of this Court to the ‘collateral argues if of the order’ doctrine.” “strict construction appeal trumps doctrine, . . State’s collateral order . process infringement State’s to due and . . . there possible acquittal.” be no would review after statutory provi- 1. The not order is reviewable to the governing sions of the denial of a motion to recuse *2 pending because the case is still in the court below and the state failed to obtain a certificate of immediate review from the trial permission interlocutory appeal court and failed to obtain to file an this court. from Supreme Georgia recognized Martin,3
In State v. Court of appeal granted by “[t]here that is no to either the State or Federal . Constitutions to . . defendant or the State in criminal appeal depends upon Instead, cases. statute.”4 The recognized may appeal any Court also that “the State not by discretionary appeal, case, issue in a criminal whether direct or Although unless that § issue is listed in 5-7-1.”5 OCGA the denial of by judge (a) (9) a motion the state to recuse a is listed in § OCGA 5-7-1 may appeal, exempt as a decision the state the state is not from the requirement obtaining of a certificate of immediate from the review obtaining permission interlocutory appeal trial court and to file an (b)7 from this court in order to such § an order.6 OCGA 5-7-2 exempts types judgments orders, decisions, several of listed in (a) obtaining 5-7-1 § OCGA from the of a certificate of review, immediate recuse a but a state’s from the denial of motion judge is not one of them. (c)8 specifically provides
Moreover,
§
“[f]or
purposes
granting
section,
of this Code
of a motion for new trial
indigent,
prosecutor
reporter
and where the
in the courtroom “indicated that a court
was not
necessary
position
since the State took no
on the matter.”
Gober,
App.
724) (1997) (“[T]he
See State v.
‘collateral order’
permits
though
pending below.”)
doctrine ...
direct review of an order even
an action remains
(punctuation omitted; emphasis supplied), citing Scroggins Edmondson,
430, 431 (1)
(c) (297
469) (1982).
249)
(and, pursuant
order, decision,
an
or
to OCGA 5-7-2
directly appealable);
judgment
it
no such
but
sets forth
that is final is
judge.
provision
In
to recuse a
Ritter v.
for the denial of a motion
decision on the recusal ofthe
State,9 the
Court stated that “a
dispose
judge
interlocutory
of a
matter that can never
trial
is an
“either
case,”
court has rendered no decision that
criminal
as
trial
by preventing
pros-
expressly
implicitly
the case
further
or
resolves
superior
charge in
court.”10
ecution of the criminal
acknowledges
brief
in its
In this
subsequent
decision,
the 2004 Martin
General Assem
bly
5-7-1 and added the denial of a state’s motion
amended OCGA
appealable
matters,
to the list of
and that the
to recuse a
Assembly
however,
date,”
not,
to this
amended OCGA
“has
designate
of a state’s motion to recuse a
5-7-2 to
the denial
requiring
certify
order, decision, or
not
ruling
the
three times
purpose
for immediate review. OCGA 5-7-2 has been amended
—
ascertaining
2011, 2012,
“[I]n
and 2013.12
history
legislation,
may
legislation
courts
look to the
ofthe
particular
doing here,
on the
matter ofthe
statute.”13
so
we
statutory history provides
support
conclude that the
firm
relevant
*3
the conclusion that the
has decided that the state’s
General
appeal
from the denial of a motion to recuse a
is reviewable
interlocutory appeal procedure.14
under the
Compliance
applicable statutory provisions
with the
is consid-
requirement
jurisdiction
appellate
ered an absolute
to confer
on an
9
(506
857) (1998).
2. The state does not cite
case
has been conferred
either this court or the
Court in a
of a criminal case
to the collateral order
Indeed,
doctrine,18
authority
and we found none.19
State
“[t]he
criminal
ruling
by
adverse
case
controlled
statute”;20
5-7-2 describes
of those matters appeal-
which
appealable
able
the state under OCGA 5-7-1 are
direct
appealable by
and which are
And the
discretionary appeal.21
specifically
“appeals
Court of
has
stated that
from the . . .
denial of the State’s motion
governed by
to recuse are
The state’s reliance on Commonwealth v.
seq.”22
Stevenson,23
et
State,
81, 82,
(2) (a), (b) (720
(citation
170) (2011)
punc
v.
Gable
290 Ga.
SE2d
and
omitted);
State,
35, 44,
362) (2012).
tuation
see
v.
Sosniak
292 Ga.
n. 4
16Gable, supra
(2) (b).
17Caperton
Co.,
Massey
v.A. T.
Coal
556U. S.
872, 876, 877-878, 880, 884-885, 886-887 (II)
(III)
2252, 173
(A),(B),
1208) (2009)(holding
relating
SCt
LE2d
that “most matters
judicial disqualification
level,”
facts,”
donot rise to a constitutional
hut that under the “extreme
case,
exceptionally large campaign contribution,
of this
which included the fact of an
due
process required disqualification
judge’s
himself;
and was violated
refusal to recuse
the Due
pecuniary
Process Clause also
recusal when a
had a direct
interest in
context,
contempt
the outcome of the
pecuniary
and in the criminal
when a
had no
challenged
arising
participation
interest in the case but was
because of a conflict
from his
in an
proceeding) (citation
punctuation omitted);
State,
(2) (c)
earlier
(709
and
see Gude v.
206) (2011).
18 Murphy Murphy,
App.
21) (2013) (“[T]he,
v.
collateral
applies
(1) completely
conclusively
order doctrine
if the order
decides the issue on
nothing
underlying
it; (2)
such that
in the
action
affect
can
resolves an issue that is substan
tially separate
important right
complaint;
(3) might
from the basic issues in the
result in the loss of an
judgment, making
effectively
if review had to await final
the order
unreview
appeal.”) (citations
punctuation omitted).
able on
19Compare
Braddy
461) (2012)
(concluding
292-293
appellate
to the collateral order doctrine
court had
to consider
criminal
judge),
from the denial of his motion to recuse the trial
overruled
defendant’s
*4
by Murphy, supra
(holding
exception
judgment
at 832
that the
order
collateral
to the final
rule
encompass
denying
judge);
County
does not
an order
a motion to recuse the trial court
Fulton
State,
(1) (651
679) (2007) (county
v.
21 Martin, supra.
22 Ware,supra. 701(2003). 829 A2d misplaced. Pennsylvania is not the fact that this court Besides is Pennsylvania holding Commonwealth, case, in in that bound specifically provided appellate procedure Pennsylvania rules of maybe a collateral order ofan taken as of from “[a]n any agency not cited court.”24The state has or lower administrative such apply statutory provision,25 and we decline rule or procedure a to this state’s when order doctrine collateral appeal expressly provided type statute of order at issue is Applying order case. the collateral not followed in this but was existing meaningless parts of the statu- render those doctrine would govern tory a motion of the denial of which scheme judge.26 to recuse a held that “the statutes and this court have
The Court appeals by providing should be the State in criminal cases having strictly against “The State failed to the State.”27 construed immediate review to OCGA a certificate of obtain appellate attempted appeal nugatory and does not activate (S)tate’s Accordingly we must dismiss the of this court. appeal.”28 Ellington,
Appeal McMillian, J., J.,P. con- concurs. dismissed. specially. fully and curs concurring fully specially. Presiding Judge, and ELLINGTON, majority opinion. separately point fully in the I write
I concur
denying
Assembly’s failure to include an order
out that the General
disqualify judge
or
as set forth
motion
the State to recuse
(a) (9) among
a certifi-
those classes of cases for which
not be
to OCGA
cate of immediate review shall
(b) may
oversight.
that a
5-7-2
have been
be obtained from the trial court before
certificate ofimmediate review
specter
appealing
a recalcitrant
such an order raises the
24 Id. at 704.
State,
7)
Scroggins, supra (explaining
v.
that in Patterson
exception
adopted
(1982),
to the final
rule
Court
the “collateral order”
1221, 93
Corp.,
LE
in Cohenv.
Industrial Loan
could thwart the of intended to grant enacting (a) (9). Evans, 63, See State v. 282 Ga. 77) (2007) (“OCGA (a) purport SE2d § 5-7-1 does not appeal acquittal[.]”); authorize the State to of State v. 716) (2006) (Because Morrell, acquittal, rectify State cannot after an it can “never seek to suppression acquitted[.]” incorrect order if a defendant is For this legislature granted reason, the the State the to an immediate suppression orders, of “so that an error committed a trial might miscarriage justice, which otherwise work a of can be appeal, jeopardy.”) (punctua- corrected on and before attachment of omitted).29 remedy any oversight, tion and footnote for such Assembly. however, lies Evans, with State (The any right creation of for the State “is a function Assembly,” courts.). for the General not for the February
Decided Attorney, Messenger, Donovan, Dick District Steven J. Assistant Attorney, appellant. District
Gary appellee. Walker, O. B., INTEREST OF R.G. a child.
A14A2032. IN THE 119) Judge. Dillard, appeals Bowen, Jesse B., father of R.G. the Juvenile Court of County’s finding deprived granting Whitfield order his son to be permanent legal custody grandparents. to the child’smaternal Because agree juvenile we with Bowen that the court lacked clear and con vincing finding deprivation, evidence which to base a we reverse. Varner, 433, 436 (589 Cf. State v. (2003) (The State was authorized to acquittal day court, from an entered after a mistrial on the last of the term of because operated regular defendant’s demand for trial to secure him a trial at the next term of court.); (1), (2), (3) (415 Chambers v. (1992) (The 201-202 State acquittal try authorized to after where the trial court lacked acquittal accused when it any proceeding entered a directed verdict of and therefore so judice void.). conducted in the trial court was coram non the General amended Title 15 of the Code “so as to substan tially revise, supersede, provisions juvenile relating proceedings modernize and enact comprehensive juvenile justice Special reforms recommended the Governor’s Council on