Jeffrey Waldon died on January 19, 2008, when his femoral artery was punctured by a knife held by appellee Deiran Green during a physical struggle between Waldon and Green. Green was charged in an indictment returned by a Fulton County grand jury with malice murder, felony murder with aggravated assault as the predicate offense, aggravated assault by stabbing the victim with a knife, and possession of a knife during the commission of a felony. Contending he was acting in defense of self when Waldon was fatally stabbed, Green filed a motion to dismiss the indictment and enter nolle prosequi on the ground that he was immune from criminal prosecution. See OCGA § 16-3-24.2.1 After conducting a hearing on the motion, the trial court issued two orders on the same day. One order concluded, pursuant to OCGA § 16-3-24.2, that Greene was immune from prosecution after setting out the facts that led to the death of Waldon and finding that Green did not provoke or initiate the confrontation with Waldon, that Green was not in the commission of a crime at the time of the confrontation with Waldon, and that Green had not agreed to engage in mutual combat with Waldon at the time of the confrontation. See OCGA § 16-3-21 b setting out three circumstances in which a person is not justified in using force in defense of self or others. In the other order issued the same day, the trial court reiterated its § 16-3-21 b findings and ordered that the case against Green be placed on the dead docket. Neither order expressly dismissed or quashed the indictment or any count therein. Compare State v. Burks , 285 Ga. 781 684 SE2d 269 2009 where trial court granted immunity and quashed the indictment. The State filed a direct appeal pursuant to OCGA § 5-7-1 a 1.
1. ” ‘It is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.’ Cit.” Rowland v. State , 264 Ga. 872 1 452 SE2d 756 1995. The right of appeal is legislatively granted and the State does not have a right to appeal from a decision in a criminal proceeding except as provided by statute. State v. Smith , 268 Ga. 75 485 SE2d 491 1997. OCGA § 5-7-1a1 authorizes an appeal by the State “ from an order, decision, or judgment setting aside or dismissing any indictment, accusation, . . . or any count thereof.” The trial court’s determination that Green was immune from prosecution under OCGA § 16-3-24.2 “in effect dismissed the entire indictment” and authorized the State’s appeal of the order under OCGA § 5-7-1a1. State v. Bunn , __Ga.__ Case No. S10A1228, decided 9/20/10 2010 WL 3619964.
