concurring.
I am compelled to concur in the dismissal of this case because OCGA § 5-7-1, as presently worded, does not authorize the State to appeal the trial court’s ruling that, without the consent of the defendant, the prosecution does not have a right to a jury trial in a criminal case. The validity of the order ostensibly arises in the context of a civil petition for a writ of prohibition filed by the District Attorney, but, as the majority correctly notes, appellate jurisdiction generally is determined by the underlying subject matter rather than the relief sought. Rebich v. Miles, 264 Ga. 467 (448 SE2d 192) (1994). Because the subject matter which underlies this case is a ruling in a pending criminal case, the prosecution’s right to appeal is limited by OCGA *690§ 5-7-1. “The State cannot. . . circumvent OCGA § 5-7-1 (a) and create an alternative avenue for appeal. [Cit.]” Berky v. State, 266 Ga. 28, 29 (463 SE2d 891) (1995). Compare Benefield v. State of Ga., 276 Ga. 100 (575 SE2d 453) (2003) (prohibition sought by State agencies having post-conviction sentencing authority).
Decided May 19, 2003 Reconsideration denied June 6, 2003. Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellant. Thurbert E. Baker, Attorney General, Kyle A. Pearson, Assistant Attorney General, for appellee.Although I must concur in the dismissal, I do so reluctantly. “The right to trial by jury shall remain inviolate. . . .” Art. I, Sec. I, Par. XI (a) of the Ga. Const. of 1983. This constitutional provision does not purport to confer the right to a jury trial only upon the defendant in a criminal case. See McCorquodale v. State, 233 Ga. 369, 374 (3) (211 SE2d 577) (1974) (trial court not required to accept accused’s waiver of jury trial); Palmer v. State, 195 Ga. 661, 668 (1) (25 SE2d 295) (1943) (defendant not entitled to insist trial court conduct a bench trial). “Before a waiver of jury trial in a criminal case can become effective, the consent of government counsel and the sanction of the court must be had. . . .” (Emphasis supplied.) Patton v. United States, 281 U. S. 276, 277 (12) (50 SC 253, 74 LE 854) (1930) (construing federal law). Therefore, I believe that the trial court’s ruling in this case erroneously subordinates the prosecution’s “inviolate” constitutional right of trial by jury to the defendant’s request for a bench trial. Unfortunately, however, that incorrect ruling is, and all like it are, currently insulated from appellate review. I have previously pointed out that the narrow confines of OCGA § 5-7-1 can prevent an appeal from a ruling which is “no less of a potential impediment to the administration of justice” than are the rulings now appealable under that code section. Ritter v. State, 269 Ga. 884, 886 (506 SE2d 857) (1998) (Carley, J., concurring). I again encourage the General Assembly to amend the statute so as to permit an appeal of all adverse pre-trial rulings in a criminal case, which negatively impact the ability of the State to properly and effectively conduct the prosecution of said case.