                                  FOURTH DIVISION
                                    BARNES, P. J.,
                                RAY and MCMILLIAN, JJ.

                       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 2, 2016




In the Court of Appeals of Georgia
 A15A2247. IN THE INTEREST OF W. L., a child.

         RAY, Judge.

         On March 25, 2015, the Juvenile Court of Monroe County entered orders

adjudicating W. L., a minor, delinquent of various offenses, ordering him to pay

restitution, and transferring the case to the Juvenile Court of Peach County for final

disposition. W. L. filed a direct appeal from the restitution order. Because we find

that the order appealed was interlocutory, it is not appealable without compliance

with the interlocutory appeal procedure of OCGA § 5-6-34 (b). Accordingly, we

dismiss this appeal as premature because the case remains pending in the juvenile

court.
       On March 25, 2015, W. L. rendered an admission in open court and was

adjudicated delinquent by the Juvenile Court of Monroe County for the offenses of

theft by receiving stolen property, fleeing and attempting to elude officers, and

reckless driving after he took a bus from a church and damaged it while attempting

to run away from his assigned group home. In its order, the Juvenile Court of Monroe

County acknowledged that W. L. was a resident of Peach County and transferred the

case to the Juvenile Court of Peach County for a final adjudication. On the same day,

the Juvenile Court of Monroe County entered an order finding that W. L. had caused

property damage and ordered that he pay $5,508.38 in restitution. W. L. argues on

appeal that the juvenile court erred in awarding restitution without first considering

evidence that he had no financial ability to pay the amount of restitution and no

prospect of being able to pay in the foreseeable future.

       The State contends that this Court is without jurisdiction to consider W. L.’s

direct appeal because it arises, in part, from an order transferring the case to the

Juvenile Court of Peach County and, therefore, was not a final order. We agree.

       Under Georgia law, an interlocutory transfer order may be converted into a

final appealable order only is if it falls under OCGA § 5-6-34 (a) (1), which provides

that

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       [a]ppeals may be taken to the Supreme Court and the Court of Appeals
       from the following judgments and rulings. . . : All final judgments, that
       is to say, where the case is no longer pending in the court below, except
       as provided in Code Section 5-6-35[.]1


(Emphasis supplied.) “The ‘in the court below’ language in OCGA § 5-6-34 (a) (1)

is generally used to refer to a trial court as distinguished from an appellate court.”

Lops v. Lops, 140 F.3d 927, 939 (V) (C) (11th Cir., 1998). Further, Georgia courts

have repeatedly held that transfer orders are not appealable orders under OCGA § 5-

6-34 (a) (1) because a case transferred from one trial court to another trial court is still

“pending in the court below.” See, e. g., Wright v. Millines, 212 Ga. App. 453, 453

(442 SE2d 304) (1994) (dismissing a direct appeal from the superior court’s order

transferring the case to the superior court of a different county, concluding that the

appeals were “premature as there is no final judgment and the case remains pending

in the trial court”); Griffith v. Ga. Bd. of Dentistry, 175 Ga. App. 533, 533 (333 SE2d

647) (1985) (dismissing a direct appeal from an order transferring the case from one

jurisdiction to another, concluding that “[t]he subject transfer order is not a final




       1
           OCGA § 5-6-35 is not applicable in the present case.

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judgment as the case is still pending in the court below, albeit a different court from

the one ordering the transfer”).

      This general rule that transfer orders are not “final appealable orders” may also

adhere when an order transfers a case to a different type of trial court below. In Fulton

County Dept. of Family & Children Svcs. v. Perkins, 244 Ga. 237, 237-238 (259 SE2d

427) (1978), a child’s former foster parents filed a complaint in the superior court

seeking to adopt the child and seeking a writ of habeas corpus returning the child to

their custody. The superior court dismissed all claims except the habeas petition and

transferred the case to the juvenile court, which had earlier dealt with matters relating

to custody of the child. The juvenile court then transferred the case back to the

superior court. DFACS appealed, contending that both transfer orders were final. Id.

at 238. Our Supreme Court disagreed and dismissed the appeal, finding that neither

order was final because despite the transfer of forum, “[a] transfer of a child custody

case is a continuation of that proceeding” and does not change the nature of the

proceeding. Id. at 239. Our Supreme Court distinguished the facts of Perkins from a

case wherein a criminal case is transferred from a juvenile court to a superior court

because “a transfer of a juvenile [to a superior court] for trial of a crime as an adult

is not a continuation of the same proceeding.” Id. See e. g., J. T. M. v. State, 142 Ga.

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App. 635, 635-636 (1) (236 SE2d 764) (1977) (order transferring juvenile criminal

proceeding to superior court is final for purposes of filing a direct appeal).

      In the present case, W. L. filed a direct appeal from an order transferring the

case from the Juvenile Court of Monroe County to the Juvenile Court of Peach

County. This transfer order is not final because it is the continuation of the same

proceeding against W. L. Accordingly, we find that W. L.’s direct appeal is premature

as there is no final judgment and the case remains pending in the juvenile court

below. Therefore, the order from which W. L. seeks to appeal is interlocutory and not

appealable without compliance with the interlocutory appeal procedure of OCGA §

5-6-34 (b). Wright, supra.

      Appeal dismissed. Barnes, P. J., and McMillian, J., concur.




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