Blackburn v. State, 67311
| Decision Date | 11 January 1984 |
| Docket Number | No. 67311,67311 |
| Citation | 314 S.E.2d 244,169 Ga.App. 498 |
| Parties | BLACKBURN v. The STATE. |
| Court | Georgia Court of Appeals |
Donald B. Howe, Jr., Tallapoosa, for appellant.
Frank C. Winn, Dist. Atty., J. David McDade, Asst. Dist. Atty., for appellee.
This is an appeal by the defendant in a robbery case. After a jury trial ended in mistrial, the appellant sought a "Motion for Judgment Notwithstanding the Mistrial" on grounds that certain evidence should not have been admitted and the state's case, without that evidence, is insufficient to support a verdict of guilty beyond a reasonable doubt. The appellant failed to obtain pursuant to OCGA § 5-7-2 (Code Ann. § 6-1002a) a certificate of immediate review of the trial court's refusal to enter judgment notwithstanding the mistrial, as was done in Phillips v. State, 133 Ga.App. 461, 211 S.E.2d 411. The state, seeking our instruction and inviting "a definitive ruling on the merits ... voluntarily waives any objection it may have in regards to the [appeal] procedure."
The state cannot do this. It is not within the state's power to confer appellate jurisdiction, nor to waive the absence of it. See, e.g., Newton v. K.B. Property Mgt. of Ga., 166 Ga.App. 901, 306 S.E.2d 5; Evans v. Davey, 154 Ga.App. 269, 270, 267 S.E.2d 875. This appeal is accordingly dismissed.
Appeal dismissed.
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Rhyne v. State, s. A93A0505
...failure to follow the procedure for interlocutory appeal. McCuen v. State, 191 Ga.App. 645, 382 S.E.2d 422 (1989); Blackburn v. State, 169 Ga.App. 498, 314 S.E.2d 244 (1984); Phillips v. State, 153 Ga.App. 410, 265 S.E.2d 293 (1980). In none of these cases did we address the issue of whethe......
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Johnson v. State, 73262
...Morris v. State, 115 Ga.App. 715, 155 S.E.2d 735 (1967). The consent by the state does not confer jurisdiction. Blackburn v. State, 169 Ga.App. 498, 314 S.E.2d 244 (1984). An out-of-time appeal must be granted by a habeas court as the appropriate remedy when the petitioner has been found to......
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Johnson v. State, 73907
...however, it is not within the state's power to confer appellate jurisdiction or to waive the absence of it. See Blackburn v. State, 169 Ga.App. 498, 314 S.E.2d 244 (1984). This court has recently reaffirmed the principle that even in a criminal case, the timely filing of a notice of appeal ......
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