M.O.B., In Interest of, 77620

• Citation: 378 S.E.2d 898,190 Ga.App. 474
• Decision Date: 10 February 1989
• Docket Number: No. 77620,77620
• Parties: In the Interest of M.O.B.
• Court: United States Court of Appeals (Georgia)

Page 898

378 S.E.2d 898

190 Ga.App. 474

In the Interest of M.O.B.

No. 77620.

Court of Appeals of Georgia.

Feb. 10, 1989.

Rehearing Denied Feb. 27, 1989.

Certiorari Denied April 13, 1989.

Billy L. Spruell, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., George J. Robinson, Jr., Joseph J. Drolet, Richard E. Hicks, Asst. Dist. Attys., Atlanta, for appellee.

CARLEY, Chief Judge.

Prior to a hearing to determine appellant's delinquency, a motion to dismiss the juvenile court proceedings was filed. Appellant brings this direct appeal from the juvenile court's denial of his motion to dismiss.

The initial issue for resolution is whether the denial of the motion to dismiss the delinquency proceedings is directly appealable. There is no statutory or decisional authority which explicitly recognizes this court's jurisdiction to hear a direct appeal from such an interlocutory order. Appellant based his motion to dismiss solely upon an alleged failure to comply with the time requirements of OCGA § 15-11-26(a). Compare Ould v. State, 186 Ga.App. 55, 366 S.E.2d 392 (1988) (motion to dismiss criminal proceedings based upon denial of the constitutional right to speedy trial). In urging that this court has jurisdiction to hear his direct appeal, appellant analogizes the denial of his motion to the denial of a motion to dismiss which is predicated upon OCGA § 17-7-170.

It is true that the denial of an OCGA § 17-7-170 motion is directly appealable. Subsection (b) of that provision provides, in relevant part, as follows: "If the person is not tried when the demand is made or at the next succeeding regular court term therafter, ... he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation." (Emphasis supplied.) Thus, in Smith v. State, 169 Ga.App. 251, 252(1), 312 S.E.2d 375 (1983), it was held that the denial of an OCGA § 17-7-170 motion was directly appealable because such a ruling "does not constitute the trial court's refusal to grant the accused an acquittal and thereby terminate the original prosecution. Rather, the denial of an OCGA § 17-7-170 ( [cit.] ) motion constitutes the trial court's determination that the prosecution has not already resulted in an automatic acquittal of the accused by operation of law. Therefore, to the extent that the denial of an OCGA § 17-7-170 ( [cit.] ) motion allows the prosecution to proceed, it is an adjudication that the impending trial of the accused will not place him in jeopardy for the commission of a crime for which he has previously been acquitted." (Emphasis in original.) The Supreme Court subsequently endorsed this reasoning. "In Smith, supra, an analogy between double jeopardy and the speedy trial requirements of OCGA § 17-7-170 was drawn and, we think correctly so." Hubbard v. State, 254 Ga. 694, 695, 333 S.E.2d 827 (1985).

In stark contrast to OCGA § 17-7-170, however, there is no explicit language in OCGA § 15-11-26 which mandates that the failure to comply with the statutory time limits provided therein will result in an adjudication of the juvenile's non-delinquency by operation of law. In the absence of such statutory language, it follows that "the denial of an OCGA § [15-11-26] motion [does not constitute] the [juvenile] court's determination that the [delinquency proceedings have] already resulted in an automatic acquittal of the [juvenile] by operation of law. Therefore, to the extent that the denial of an OCGA § [15-11-26] motion allows the [delinquency proceedings] to proceed, it is [not] an adjudication that the impending [delinquency hearing] will ... place [the juvenile] in jeopardy for the commission of a [delinquent act] for which he has previously been acquitted." Smith v. State, supra 169 Ga.App. at 252(1), 312 S.E.2d 375. (Emphasis in original.) Thus, rather than Hubbard, supra, or Smith, supra, the authority which is controlling in the present case is Austin v. State, 179 Ga.App. 235, 345 S.E.2d 688 (1986), wherein the direct appeal from the denial of a plea in bar was dismissed because "there has been no prior adjudication favorable to the appellant ..., by operation of law or otherwise." (Emphasis supplied.)

It is a legislative function to establish the jurisdictional requirements for the appealability of cases. The appellate courts have heretofore given due consideration to the finality requirement which otherwise serves as a statutory limitation on direct appealability. Neither Hubbard, supra, nor Smith, supra, are authority for the proposition that the denial of any and all motions to dismiss would be directly appealable. The direct appealability of interlocutory orders remains the exception rather than the rule. All that has been previously recognized is "that 'a broader construction' of direct appealability 'is appropriate where the order appealed from is one denying a plea of double jeopardy[,]' " and that the denial of an OCGA § 17-7-170 motion is such an order. Smith v. State, supra 169 Ga.App. at 251(1), 312 S.E.2d 375. However, for the reasons discussed, the denial of an OCGA § 15-11-26 motion cannot be analogized to the denial of an OCGA § 17-7-170 motion. "Because we conclude that this issue is one for which a certificate of immediate review and petition for interlocutory appeal were required, ... the appeal must be dismissed. [Cits.] This is not a question involving speedy trial rights under OCGA § 17-7-170, which would be directly appealable. [Cit.]" Miller v. State, 180 Ga.App. 710, 711, 350 S.E.2d 313 (1986).

Appeal dismissed.

SOGNIER, J., concurs.

DEEN, P.J., concurs specially.

DEEN, Presiding Judge, concurring specially.

This case is illustrative of a prospective appellant walking on egg shells or minefields through the narrow winding passageway of a spaghetti junction, while seriously striving and seeking to select and identify the proper pathway of either an interlocutory, discretionary, or a direct appeal. Acknowledging that statutory requirements and conditions precedent in selecting the appropriate appellate process are jurisdictional, the fact that our...