KELLER v. STATE, 275 Ga. 680 (2002)

571 S.E.2d 806

KELLER v. THE STATE.

S02G0572.Supreme Court of Georgia.
DECIDED: OCTOBER 28, 2002

SEARS, Presiding Justice.

We granted certiorari in this case to consider whether the Court of Appeals erred in dismissing one of Keller’s appeals that was before it.[1]
We conclude that when a multi-count indictment is the subject of one trial and the fact-finder returns a verdict of guilty on each count of the indictment, the case is not final and subject to appeal until a sentence has been entered on each count of the indictment. Because the Court of Appeals’s dismissal of Keller’s appeal is inconsistent with this rule, we reverse its judgment and remand the case to it for proceedings consistent with this opinion.

Under OCGA § 5-6-34(a)(1), Keller had a right to a direct appeal from a “final judgment, that is to say, where the case is no longer pending in the court below.” In interpreting § 5-6-34(a)(1), the Georgia Court of Appeals has held that a criminal case is not final but is pending in the trial court until a written judgment of conviction andsentence is entered in the trial court.[2] Although Littlejohn

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and Crolley involved cases in which there was a one-count indictment and thus one sentence to enter, the principle of those cases applies with equal force to cases such as Keller’s in which multiple counts of an indictment are tried together. In this regard, other courts have held that in such multi-count trials, the case is not final and ripe for appeal until a sentence has been entered on each count of the indictment that was the subject of the trial.[3] Based on the rationale of Littlejohn, Crolley, and the cases from other jurisdictions, we conclude that when multiple counts of an indictment are tried together and the trial court does not enter a written sentence on one or more of the counts, the case is still pending in the trial court and is not a final judgment under § 5-6-34(a)(1).

In the present case, the trial court did not enter a sentence on one count of the multi-count indictment following the jury’s verdict. Keller’s case thus was not ripe for appeal at that time even though the trial court did enter a written judgment of conviction and sentence on the other counts of the indictment. Because Keller subsequently filed a notice of appeal within thirty days of the trial court’s entry of a written sentence on the last count of the jury’s verdict, his appeal was timely and the Court of Appeals erred in dismissing it.

Judgment reversed and case remanded. All the Justices concur.

[1] Keller v. State, 252 Ga. App. 813 (558 S.E.2d 5) (2001) (Keller had two cases before the Court of Appeals; Case No. A010927 is the subject of the grant of certiorari).

[2] Littlejohn v. State, 185 Ga. App. 31 (363 S.E.2d 327) (1987);Crolley v. State, 182 Ga. App. 2, 3(1) (354 S.E.2d 864) (1987). Similarly, this Court has held that “[a]n oral declaration as to what the sentence shall be is not the sentence of the court; the sentence signed by the judge is.” Curry v. State, 248 Ga. 183, 185 (281 S.E.2d 604) (1981).

[3] See United States v. Dodson, 291 F.3d 268, 272-74 (4th Cir. 2002);United States v. Luciano-Mosquera, 63 F.3d 1142, 1148, n. 2 (1st Cir. 1995); Fernandez v. United States, 941 F.2d 1488, 1492 (11th Cir. 1991);United States v. Patel, 835 F.2d 708, 709 (7th Cir. 1987); United Statesv. Wilson, 440 F.2d 1103, 1104-05 (5th Cir. 1971); State v. Horne, 768 So.2d 228, 229 (La.App. 1st Cir. 2000); State v. Reynolds, 819 S.W.2d 322, 323, n. 1 (Mo. 1991). Compare United States v. Powell, 24 F.3d 28, 30-31 (9th Cir. 1994) (when a count is severed from a multi-count indictment, separate trials are held on the severed counts and each conviction on the severed counts is separately appealable when sentence is entered).

DECIDED OCTOBER 28, 2002.

Certiorari to the Court of Appeals of Georgia — 252 Ga. App. 813.

Thomas J. Thomas, for appellant.

Patrick H. Head, District Attorney, Amelia G. Pray, W. Thomas Weathers III, Assistant District Attorneys, for appellee.