concurring specially.
I concur in the vacation of our earlier opinion and the dismissal of the appeal, but not in the view expressed in the new opinion, that this court would have jurisdiction but for the ruling of the Supreme Court on certiorari. I do agree that we are bound to follow the direction of the Supreme Court. Ga. Const. Art. VI, Sec. VI, Par. VI. The Supreme Court determined that OCGA § 5-7-1 did not authorize an appeal by the State from the trial court order, so it should have been dismissed by this Court.
Although I concurred in the judgment and opinion when this Court first decided the case, see State v. Berky, 214 Ga. App. 174 (447 SE2d 147) (1994), the appeal clearly should have been dismissed.
The State’s notice of appeal states that it is from the dismissal of the accusation for want of prosecution but takes care to state that the transcript of the hearing on the “motion to suppress/motion in limine” will be filed for inclusion.
The State’s enumerations of error and brief make it self-evident that its appeal was from the unappealable grant of the motion in limine. The enumerations are that “The trial court erred in dismissing the accusation for want of prosecution” and that “The trial *154court erred in granting [Berky’s] motion in limine to exclude videotape evidence of the alleged crime.” The first enumeration was subsumed in the second by a combined argument, which is summarized at the outset by the statement that “The trial court erred in dismissing the accusation for want of prosecution when the State could not prosecute because the trial court erroneously excluded the sole evidence of the crime.” The argument focused entirely on the admissibility of the videotape.
After the State filed its brief, the defendant simultaneously filed his brief plus a motion to dismiss the appeal and brief in support of it. He pointed out that OCGA § 5-7-1 did not authorize the State’s appeal and cited an unpublished case in which this Court a few months earlier had dismissed the State’s application for leave to appeal an interlocutory order granting defendant’s motion in limine. The basis for the dismissal was that neither subsection (3) nor subsection (4) of OCGA § 5-7-1 (a) authorized an appeal by the State. State v. Land-O-Sun Dairies, 204 Ga. App. 485, 487 (419 SE2d 743) (1992), and State v. Hollomon, 132 Ga. App. 304 (208 SE2d 167) (1974), were cited in the order. The substantive issue was the same: the admissibility of a videotape depicting an arrest by the same officer, who was killed a few days after the arrest. Reconsideration and certiorari were denied in that case. Defendant Berky urged that the State’s appeal was frivolous because of the dismissal in the earlier case; it actually was ordered two weeks before the motion hearing in Berky’s case.
The State replied that jurisdiction was provided by subsection (1), which allows it to appeal from an order dismissing an accusation, even “[w]here the dismissal is a direct and sole result of the trial court’s exclusion or suppression of ALL of the State’s evidence.”
We did not expressly rule on the motion but instead issued an opinion on the merits, impliedly denying the motion or at least in effect denying it by our action. Defendant moved for reconsideration and pointed out the problem of jurisdiction and the absence of a ruling on his motion. He noted that the State was in fact not appealing from the dismissal of the accusation because it did not object to the dismissal when it announced that it was not ready to proceed with the trial. The motion for reconsideration was denied and the petition for certiorari was granted.
The activity in the trial court reveals that the issue was prompted not by the defendant but by the State, in the first place.
Defendant filed a motion to suppress scientific tests and his own statements, if any, on the grounds of an illegal stop, detention, and arrest. No mention was made of the videotape or of the officer’s death. The State responded to the motion by filing a “Brief in Support of Admissibility of Videotape and Police Report” which did not *155address the subject of the motion except peripherally.
Decided July 9, 1996. Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Assistant Solicitor, for appellant. Russell T. Bryant, for appellee.At the hearing, the defendant made an oral motion in limine to preclude the videotape, and both the State and defendant requested a ruling on this motion before the court and the parties addressed the motion to suppress. The court obliged and granted the motion on the authority of Allen v. State, 146 Ga. App. 815 (247 SE2d 540) (1978), whereupon defendant withdrew his motion to suppress.
On the day set for jury trial, defendant announced “ready” and the State announced that it was unable to prosecute in light of the ruling on the motion in limine. Defendant moved for dismissal of the accusation for want of prosecution and the court was compelled to grant it.
Although an appellate ruling on the substantive issue of admissibility may be desirable, as the trial court suggested at the outset of the motion hearing, the procedure utilized here does not present it, as the Supreme Court explained. This was not, in actuality, an appeal from an order dismissing an accusation, as is permitted by OCGA § 5-7-1 (a) (1).
In cases not affected by OCGA § 24-4-48, which was enacted by the General Assembly in 1996, the issue of the admissibility of the videotape must await a proper appeal, such as an instance where a trial court admits, over defendant’s objection, such evidence or other evidence generated by a law enforcement officer who dies before trial. If defendant is convicted, the issue will be ripe for resolution by an appellate court in an appeal taken by defendant.
Or, utilizing the interlocutory procedure in OCGA § 5-6-34 (b), a defendant could raise it on a granted application for review of the denial of a defendant’s motion in limine to exclude the evidence. See, e.g., Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987); Deckard v. State, 210 Ga. App. 421 (436 SE2d 536) (1993). But the opposite is not permitted. The State could not raise this issue through an interlocutory application after the grant of a motion in limine excluding the tape evidence. OCGA § 5-7-1; State v. Land-O-Sun Dairies, supra; State v. McKenna, 199 Ga. App. 206 (404 SE2d 278) (1991); State v. Hollomon, supra.
I am authorized to state that Presiding Judge McMurray joins in this special concurrence.