Jimmy Wallace v. State - Appeal Dismissed as Premature
Summary
The Court of Appeals of Georgia dismissed Jimmy Wallace's appeal as premature. Wallace was convicted of drug trafficking and filed a notice of appeal the day after his motion for new trial, before the trial court had ruled on that motion. The appellate court held it lacked jurisdiction because the case remained pending below, as the pendency of a motion for new trial divests an appellate court of jurisdiction absent compliance with the interlocutory appeal procedure under OCGA § 5-6-34(b).
“Consequently, we lack jurisdiction over this premature appeal, which is hereby DISMISSED.”
What changed
The Court of Appeals dismissed Wallace's appeal because it was filed before the trial court had granted, overruled, or otherwise finally disposed of his motion for new trial. Under OCGA § 5-6-34(a)(1)(B), appeals generally may only be taken from final judgments, and OCGA § 5-6-38(a) requires the notice of appeal to be filed within 30 days after the order finally disposing of a motion for new trial. The court confirmed that a motion to withdraw the motion for new trial does not alter this requirement — the trial court must itself finally dispose of the underlying motion to start the appellate clock.\n\nCriminal defendants and their counsel in Georgia should ensure that any motion for new trial is fully resolved before filing a notice of appeal, or alternatively follow the interlocutory appeal procedure under OCGA § 5-6-34(b) if immediate appeal is necessary. Premature filings will be dismissed without consideration of the merits.
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April 20, 2026 Get Citation Alerts Download PDF Add Note
Jimmy Wallace v. State
Court of Appeals of Georgia
- Citations: None known
- Docket Number: A26A0736
Disposition: Dismissed
Disposition
Dismissed
Combined Opinion
Court of Appeals
of the State of Georgia
ATLANTA,____________________
April 20, 2026
The Court of Appeals hereby passes the following order:
A26A0736. JIMMY WALLACE v. THE STATE.
After being convicted of drug trafficking and other crimes, Jimmy Wallace filed
a timely motion for new trial. Later that same day, Wallace filed a motion to withdraw
the pending motion for new trial, and the next day, he filed a notice of appeal to this
Court. We lack jurisdiction because the appeal is premature.
Under OCGA § 5-6-34(a)(1)(B), 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[.]”“A notice of appeal must be filed within 30 days of the judgment being
appealed, or, if a motion for new trial is filed within 30 days of the judgment, ‘the
notice shall be filed within 30 days after the entry of the order granting, overruling, or
otherwise finally disposing of the motion.’” Hann v. State, 292 Ga. App. 719, 719 (1)
(665 SE2d 731) (2008) (quoting OCGA § 5-6-38(a)).
Here, the record contains no indication that the trial court has ruled on
Wallace’s motion for new trial or his motion to withdraw that motion. Accordingly,
the case remains pending below, and this appeal is premature. See Porter v. State, 367
Ga. App. 70, 72(1) & n.9 (885 SE2d 51) (2023) (the pendency of a motion for new trial
divests the appellate court of jurisdiction, absent compliance with the interlocutory
appeal procedure of OCGA § 5-6-34(b)); Hann, 292 Ga. App. at 720 (1) (same).
Wallace’s pending motion to withdraw his motion for new trial does not change this
analysis. See Heard v. State, 274 Ga. 196, 197–98(1) (552 SE2d 818) (2001) (holding
that the trial court must grant, deny, or otherwise finally dispose of a motion for new
trial to start the appellate clock under OCGA § 5-6-38). Consequently, we lack
jurisdiction over this premature appeal, which is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
04/20/2026
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.
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