Howard v. Lane

• Decision Date: 19 May 2003
• Docket Number: No. S03A0282.,S03A0282.
• Citation: 581 S.E.2d 1,276 Ga. 688
• Parties: HOWARD v. LANE.
• Court: Georgia Supreme Court

581 S.E.2d 1

276 Ga. 688

HOWARD v. LANE.

No. S03A0282.

Supreme Court of Georgia.

May 19, 2003.

Reconsideration Denied June 6, 2003.

Paul L. Howard, Jr., Dist. Atty., Marc A. Mallon, Asst. Dist. Atty., for appellant.

Thurbert E. Baker, Atty. Gen., Kyle A. Pearson, Asst. Atty. Gen., Tommy K. Floyd, Robert B. Ellis, Jr., Dist. Attys., Joseph F. Burford, Smyrna, for appellee.

HINES, Justice.

Paul Howard, the Fulton County District Attorney, has filed this appeal from the denial of a petition for a writ of prohibition. Finding that this Court is without jurisdiction to address this matter, we dismiss.

The State sought to prosecute Larry McGinty on a felony indictment. McGinty waived his right to a jury trial, and the State objected. The trial court, the Honorable Bensonetta Tipton Lane presiding, overruled the State's objection. The State then, through Howard, sought a writ of prohibition to prevent Judge Lane from conducting the trial without a jury. The writ was denied. Shortly thereafter, the State sought in this Court a stay of McGinty's trial, which this Court granted. Subsequently, the State filed its notice of appeal from the denial of the writ of prohibition, and this appeal was docketed in this Court.

It is incumbent upon this Court to inquire into its own jurisdiction. Collins v. AT & T, 265 Ga. 37, 456 S.E.2d 50 (1995). In OCGA § 5-7-1(a), the General Assembly has set forth only a limited right of appeal for the State in criminal cases. See State v. Tyson, 273 Ga. 690, 691(1), 544 S.E.2d 444 (2001). Accord Moody v. State, 272 Ga. 55, 56(2), 525 S.E.2d 360 (2000); Berky v. State, 266 Ga. 28, 30, 463 S.E.2d 891 (1995). The ruling sought to be reversed does not fall within the provisions of OCGA § 5-7-1(a).¹ Although Howard argues that the petition for a writ of prohibition is a separate civil proceeding and that the ruling thereon is final and therefore appealable, see OCGA § 5-6-34(a)(1), that does not end the inquiry. As we stated in Rebich v. Miles, 264 Ga. 467-468, 448 S.E.2d 192 (1994), "the underlying subject matter generally controls over the relief sought in determining the proper appellate procedure." Here, the underlying subject matter is the criminal prosecution, and the trial court's ruling entered therein; but for that ruling, the State would not have sought a writ of prohibition. Further, the fact that the first action initiated in this Court, even before the notice of appeal was filed, was to seek a stay of the non-jury trial also shows that the underlying subject matter is the criminal prosecution. And the only matter addressed in the petition for a writ of prohibition was Judge Lane's order in the criminal proceeding.

Viewing this case in the proper light, it is clear that there is no jurisdiction in this Court. The trial court in a criminal case has made a ruling with which the State takes issue, i.e., that because the defendant has waived a jury trial, a bench trial will take place. The State has not attempted to directly appeal that ruling because it has no right to do so under OCGA § 5-7-1. Rather, the State, in the person of the District Attorney, has attempted to avoid this statute and has attacked the ruling through the device of a writ of prohibition. However, inasmuch as the underlying subject matter is the criminal prosecution and a ruling made therein, and from which the State has no ability to appeal, the appeal must be dismissed.

Appeal dismissed.

All the Justices concur.

CARLEY, Justice, 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 S.E.2d 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 § 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 S.E.2d 891 (1995). Compare Benefield v. State of Ga., 276 Ga. 100, 575 S.E.2d 453 (2003) (prohibition sought by State agencies having post-conviction sentencing authority).

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 S.E.2d 577 (1974) (trial court not required to accept accused's waiver of jury trial); Palmer v. State, 195 Ga. 661, 668(1), 25 S.E.2d 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 S.Ct. 253, 74 L.Ed. 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....