State v. Gina Marie Giannone

Court of Appeals
of the State of Georgia

ATLANTA,____________________
May 11, 2026

The Court of Appeals hereby passes the following order:

A26A1569. THE STATE v. GINA MARIE GIANNONE.

Gina Marie Giannone was charged by accusation with misdemeanor simple
battery, but after conducting an evidentiary hearing, the trial court determined that
she was immune from prosecution under OCGA § 20-2-1001(b). On October 10,
2025, the trial court entered a nolle prosequi order submitted by the State. The order
included a notation, signed and dated by the assistant solicitor general, that
Giannone’s record should be restricted from public access. On December 12, 2025,
the State filed a Motion to Correct Clerical Error, contending that the assistant
solicitor general had mistakenly marked on the submitted order that Giannone’s
record should be restricted. On January 16, 2026, the trial court entered an order
denying the State’s Motion to Correct Clerical Error, finding that there had been no
clerical mistake and that Giannone was entitled to have her record restricted under
OCGA § 35-3-37(h)(2)(A). It is from that order that the State now appeals.
We lack jurisdiction. “Because OCGA § 5-7-1(a) establishes the universe of
appeals the State is permitted to seek in criminal cases, if the State attempts an appeal
outside the ambit of OCGA § 5-7-1(a), the appellate courts do not have jurisdiction
to entertain it.” State v. Wheeler, 310 Ga. 72, 74(1) (849 SE2d 401) (2020) (citation
modified). In its notice of appeal, the State asserts that it is entitled to file a direct
appeal from the trial court’s order pursuant to OCGA §§ 5-6-34(a)(1) and (a)(12).1

1
OCGA § 5-6-34(a)(1)(B) authorizes a direct appeal from “[a]ll final judgments,
that is to say, where the case is no longer pending in the court below, except as
But “the State has no right to appeal under OCGA § 5-6-34 or any other provision of
the Appellate Practice Act.” State v. Cash, 298 Ga. 90, 93(1)(b) (779 SE2d 603)
(2015) (citation modified). See OCGA §§ 5-6-33(a)(1) (granting right of appeal under
the Appellate Practice Act only to “[e]ither party in any civil case and the defendant
in any criminal proceeding in the superior, state, or city courts, or in the Georgia
State-wide Business Court”), 5-6-33(b) (“This Code section shall not affect Chapter
7 of this title.”). Because the trial court’s order does not fall within one of the limited
circumstances in which the State has a right to appeal under OCGA § 5-7-1(a), this
appeal is hereby DISMISSED. See Cash, 298 Ga. at 94(1); State v. Smith, 268 Ga. 75,
76 (485 SE2d 491) (1997).

Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
05/11/2026
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.

provided in Code Section 5-6-35.” OCGA § 5-6-34(a)(12) authorizes a direct appeal
from “[a]ll judgments or orders entered pursuant to Code Section 35-3-37.”
2