SECOND DIVISION

MILLER, P. J.,

MERCIER, J., and SENIOR APPELLATE JUDGE PHIPPS.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

February 3, 2021

In the Court of Appeals of Georgia

A20A2008. MARTIN v. THE STATE.

PHIPPS, Senior Appellate Judge.

This case comes to us for the second time on appeal. Following a jury trial,

Ricky Martin was found guilty of burglary in the second degree, aggravated assault,

criminal attempt to commit a felony, and possession of a firearm during the

commission of a felony. Martin was sentenced as a recidivist to 8 years for the

burglary count, 20 years for the aggravated assault count, 2 years and 6 months for

the criminal attempt to commit a felony count, and 5 years (to be served

consecutively) for the possession of a firearm during the commission of a felony

count. Martin subsequently moved for a new trial, arguing among other things that

the evidence was insufficient to support his convictions for aggravated assault and

possession of a firearm during the commission of a felony and arguing that he
received ineffective assistance of counsel at trial. The trial court denied Martin’s

motion for new trial and Martin appealed. This Court affirmed Martin’s convictions,

but vacated the portion of the trial court’s order that addressed Martin’s claim of

ineffective assistance and remanded the case for the trial court to rule on the merits

of that claim. Martin v. State, 349 Ga. App. 656, 661 (4) (825 SE2d 227) (2019). 

On remand, the trial court held an evidentiary hearing on Martin’s claim for

ineffective assistance of counsel. On March 23, 2020, following the hearing, the trial

court granted Martin’s motion for new trial as to Count 2 (the aggravated assault

charge), finding that Martin’s trial counsel provided ineffective assistance by failing

to preserve for appeal his objection to the trial court’s denial of his requested jury

charge. The trial court vacated Count 2 of Martin’s Final Disposition Order and

placed the charge back on the trial calendar, but noted that “[t]he remaining portions

of that Final Disposition Order remain in full force and effect.” The State

subsequently filed a motion to nolle prosequi the aggravated assault charge in the

interest of judicial economy, which the trial court granted on June 10, 2020. The trial

court did not, however, enter a new written sentence. 

On the same day the trial court entered the order of nolle prosequi, Martin filed

a notice of appeal from the March 23, 2020 order granting his motion for new trial

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as to Count 2. He argues on appeal that he should have received a complete resentencing after the trial court vacated his sentence for aggravated assault because,

according to Martin, his sentencing package was predicated upon his now vacated

conviction for aggravated assault. Pretermitting the validity of Martin’s argument, we

lack jurisdiction over this premature appeal. 

Under OCGA § 5-6-34 (a) (1), appeals generally may be taken from “[a]ll final

judgments, that isto say, where the case is no longer pending in the court below.” The

current record on appeal, however, contains no indication that the trial court has

entered a new sentence reflecting the nolle prosequi of the vacated aggravated assault

count. To the contrary, the operative final disposition in this case includes sentences

for all the counts, including aggravated assault. Absent a final disposition indicating

the nolle prosequi of the vacated count and a sentence that reflects that nolle

prosequi, this case remains pending in the trial court. See Thelusma v. State, 356 Ga.

App. 495, 495 (847 SE2d 852) (2020) (appeal dismissed as interlocutory because no

new sentencing order had been entered after the court granted a motion for new trial

on certain counts and entered an order of nolle prosequi as to those counts). 

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Consequently, we lack jurisdiction over this premature appeal, which is hereby

DISMISSED.

Appeal dismissed. Miller, P. J., and Mercier, J., concur.

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