Larry Dean Day v. State ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
March 09, 2021
The Court of Appeals hereby passes the following order:
A21A1042. LARRY DEAN DAY v. THE STATE.
In 2015, a jury found Larry Day guilty of rape, incest, and numerous related
offenses, and the superior court imposed a total sentence of life in prison. Day filed
a motion for a new trial, in which he raised several challenges to his convictions and
sentences. The superior court denied relief on all grounds but one – Day’s challenge
to the court’s failure to impose split sentences on several of his convictions. As to that
claim, the superior court agreed that Day must be resentenced on several of his counts
of conviction and stated that it “will resentence the Defendant as to these counts.”
The superior court later granted Day’s motion for an out-of-time appeal, and he filed
this direct appeal. We lack jurisdiction.
Under OCGA § 5-6-34 (a) (1), appeals generally may be taken from “[a]ll final
judgments, that is to say, where the case is no longer pending in the court below.” The
current record on appeal contains no indication that the superior court has resentenced
Day in accordance with the court’s order on his motion for a new trial. Absent a new
sentencing order, this case remains pending before the superior court. Consequently,
Day was required to use the interlocutory appeal procedures – including obtaining a
certificate of immediate review from the superior court – to appeal following the
grant of his request for an out-of-time appeal. See OCGA § 5-6-34 (b); accord
Littlejohn v. State, 185 Ga. App. 31, 32 (363 SE2d 327) (1987) (this Court lacks
jurisdiction to entertain an appeal over a criminal case that is still pending before the
trial court); cf. Keller v. State, 275 Ga. 680, 681 (571 SE2d 806) (2002) (a criminal
case is not final until a sentence has been entered on each conviction). Day’s failure
to comply with the interlocutory appeal procedures deprives us of jurisdiction over
this premature direct appeal, which is hereby DISMISSED. See Crane v. State, 281
Ga. 635, 635-637 (641 SE2d 795) (2007); Boyd v. State, 191 Ga. App. 435, 435 (383
SE2d 906) (1989); accord Littlejohn, 185 Ga. App. at 32.
Upon entry of a new sentencing order, the superior court clerk is DIRECTED
to re-transmit the case to this Court for re-docketing. Day need not file a second
notice of appeal, as his prematurely filed notice of appeal will ripen upon entry of a
new written sentence. See Perry v. State, 329 Ga. App. 121, 121 (764 SE2d 178)
(2014); Livingston v. State, 221 Ga. App. 563, 564-568 (1) (472 SE2d 317) (1996).
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
03/09/2021
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.