State v. Smith

Full title: THE STATE v. SMITH

Court: Supreme Court of Georgia

Date published: Jun 2, 1997

268 Ga. 75 (Ga. 1997)

485 S.E.2d 491

Opinion

S97A0416.

DECIDED JUNE 2, 1997.

Murder. Cobb Superior Court. Before Judge Robinson.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, Michael J. Bowers, Attorney General, for appellant.

Flint Sumner, John B. Sumner, for appellee.

SEARS, Justice.

The initial and dispositive question raised by this appeal is whether the State has the right to appeal the order of the trial court disqualifying the Cobb County District Attorney's Office from prosecuting the appellee, Mark Steven Smith. We conclude that the trial court's order does not fall within the limited number of cases in which the State has the right to appeal. Accordingly, we dismiss the appeal.

There is no right to appeal granted by either the State or Federal Constitutions to civil litigants or to the defendant or the State in criminal cases.¹ Instead, the right of appeal depends upon statute.² Consistent with these principles, it has been held that the State does not have a right to appeal from decisions in criminal proceedings except as provided by statute.³ Although the General Assembly has granted the State the right to appeal in criminal cases in limited instances,⁴ the order in this case is not one of the instances in which the State has the right to appeal under § 5-7-1. Further, the State has no right to appeal under the terms of the Appellate Practice Act,⁵ as that Act grants the right of appeal only to "[e]ither party in any civil case and the defendant in any criminal proceeding."⁶

1 Thomas v. State, 260 Ga. 262, 263 ( 392 S.E.2d 520) (1990); Hancock v. Board of Tax Assessors of Harris County, 226 Ga. 570 ( 176 S.E.2d 102) (1970).

2 Georgia Railroad Banking Co. v. Redwine, 208 Ga. 261, 263 ( 66 S.E.2d 234) (1951).

3 State v. Gossett, 214 Ga. 840, 841 ( 108 S.E.2d 272) (1959).

4 OCGA § 5-7-1 (a) (1-5).

5 See OCGA § 5-6-30 to OCGA § 5-6-51.

6 OCGA § 5-6-33 (a) (1).

For the foregoing reasons, we conclude that the State does not have the right to appeal in this case.⁷ Therefore, we dismiss the appeal.

7 Anything to the contrary in State v. Evans, 187 Ga. App. 649, 650 (1) ( 371 S.E.2d 432) (1988), is hereby overruled.

Appeal dismissed. All the Justices concur.

SEARS, Justice.

DECIDED JUNE 2, 1997.