Janorris Spears v. State

                          FIFTH DIVISION
                          RICKMAN, C. J.,
      MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
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                    DEADLINES ARE NO LONGER TOLLED IN THIS
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                                                                       July 19, 2021



In the Court of Appeals of Georgia
 A21A1696. SPEARS v. THE STATE.

      MCFADDEN, Presiding Judge.

      Janorris Spears was convicted of multiple crimes and filed this direct appeal

from the denial of his motion for new trial. Spears has now moved to remand the case

to the trial court in light of our Supreme Court’s recent decision in Seals v. State, __

Ga. __ (2021 Ga. LEXIS 449 *) (Case No. S20G0931, decided June 18, 2021). The

trial court had dead-docketed three counts of Spears’s indictment. Consequently

under Seals, Spears had been required to follow the interlocutory appeal procedure

of OCGA § 5-6-34 (b) because his case is not final. So we cannot grant his motion

to remand (which is moot) and must dismiss. We note that, upon remittitur, the case

will return to the trial court, and Spears will then have an opportunity to secure a final
disposition at that level and the right to initiate a new appeal if he wishes to challenge

that final disposition.

      After a nine-day trial, a jury found Spears guilty of criminal attempt to commit

armed robbery, armed robbery, false imprisonment, aggravated assault, and

conspiracy to commit armed robbery. It found him not guilty of malice murder, one

count of felony murder, and two weapons charges. The jury was unable to reach a

verdict on two counts of felony murder and one count of aggravated assault with a

deadly weapon, and the trial court placed those counts on the dead docket. The trial

court entered a judgment of conviction on the verdict, sentencing Spears to serve 30

years of incarceration.

      After the trial court denied Spears’s motion for new trial, he filed this direct

appeal. We, however, lack jurisdiction.

      This case is controlled by our Supreme Court’s recent decision in Seals, __ Ga.

at __ (2021 Ga. LEXIS 449 *), in which the court held that when a count of the

indictment is dead-docketed, the case remains pending below, so the provisions of

OCGA § 5-6-34 (a) (1) allowing a direct appeal from a final judgment do not apply.

Rather, to pursue an appeal, the defendant must follow the procedures for an

interlocutory appeal, including obtaining a certificate of immediate review from the

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trial court and filing an application with the appellate court. See OCGA § 5-6-34 (b);

Seals at __ (2021 Ga. LEXIS 449, at *1-2). Because Spears’s case is pending below

yet he failed to follow the interlocutory appeal procedures, we must dismiss his

appeal. See Seals at __ (2021 Ga. LEXIS 449, at *2); Boyd v. State, 191 Ga. App.

435, 435 (383 SE2d 906) (1989). We deny as moot Spears’s motion to remand.

      We share our Supreme Court’s concerns about the practical consequences of

Seals and join that Court’s invitation to the General Assembly to consider “whether

to amend OCGA § 5-6-34 (a) to allow for immediate appeals in cases where the only

non-resolved counts are dead-docketed.” Seals at __ (4) (2021 Ga. LEXIS 449, at

*21) (footnote omitted). In the interim, we encourage our trial courts, in cases like

this one, to grant certificates of immediate review under OCGA § 5-6-34 (b).

      Appeal dismissed. Rickman, C. J., and Senior Appellate Judge Herbert E.

Phipps concur.




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