concurring specially.
I totally agree with the conclusion of the majority that appellant’s conviction should be affirmed. However, I cannot agree with the majority’s analysis in Division 1 of the opinion with regard to the effect of an order of the Supreme Court transferring a case to this court. Division 1 of the majority opinion states as follows: “Defendant enumerates two errors. Both allege violation of his due process rights under the United States and Georgia Constitutions. This appeal was filed with the Georgia Supreme Court and was transferred to this court by order, without comment. That court’s refusal to review George’s constitutional challenges mandates the finding that the contentions on constitutional grounds are without merit, and the transfer of the case to this court allows us to consider the enumerations on *232their merits as a question of due process. See McCann v. State, 167 Ga. App. 368 (1) (306 SE2d 681), U. S. cert. den. 104 S. C. 712; Cassells v. Bradlee Mgt. Svcs., 161 Ga. App. 325 (1) (291 SE2d 48); Denton v. State, 154 Ga. App. 427 (2) (268 SE2d 725).” (Emphasis supplied.)
Decided June 24, 1985.I simply cannot agree that the effect of the transfer is that appellant’s “contentions on constitutional grounds are without merit. . . .” All the transfer from the Supreme Court means is that the case is not within the exclusive jurisdiction of that court. “No attack has been made upon the constitutionality of any statute nor is the construction of the Constitution involved . . . , but the application of the State and Federal Constitutions to the facts in the appellant’s case is involved. Under such circumstances, since the case does not involve an appeal from the conviction of a capital felony, jurisdiction of the appeal is in the Court of Appeals and not the Supreme Court. [Cits.]” Marchman v. State, 232 Ga. 48 (205 SE2d 266) (1974). See also Register v. Stone’s Independent Oil Distrib., 225 Ga. 490 (169 SE2d 781) (1969); Ramirez v. State, 223 Ga. 815 (158 SE2d 238) (1967); Robinson v. State, 209 Ga. 48 (70 SE2d 514) (1952). All of the cases of this court cited in the majority opinion deal with the transfer to this court of cases wherein the constitutionality of a statute had been drawn into question.
Thus, in this case, the transfer from the Supreme Court simply means that this court has jurisdiction over all of the issues in the case. That this is a correct interpretation is made manifest by the otherwise inconsistent language of the majority which states that “the transfer of the case to this court allows us to consider the enumerations on their merits as a question of due process.” (Emphasis supplied.) (Majority opinion, page 229.) The enumerations of appellant concerning the “question of due process” are, of course, based on constitutional grounds. However, as stated, these issues are within the jurisdiction of this court.
With regard to Division 2 of the opinion, the majority states that the appellant contends that the trial court erred in failing to grant his motion for a directed verdict “on the basis of selective enforcement of the law in violation of defendant’s right to equal protection under the law (i.e., due process)" (Emphasis supplied.) (Majority opinion, page 229.) I disagree with the majority’s equation of equal protection grounds with those based upon due process. They are not the same thing. In this case, the appellant’s enumerations of error assert violation of his due process rights only.
*233E. Angela Emerson, for appellant. Joseph H. Briley, District Attorney, for appellee.