Paul Howard, the Fulton County District Attorney, has filed this appeal from the denial of a petition for a writ of prohibition. Finding that this Court is without jurisdiction to address this matter, we dismiss. The State sought to prosecute Larry McGinty on a felony indictment. McGinty waived his right to a jury trial, and the State objected. The trial court, the Honorable Bensonetta Tipton Lane presiding, overruled the State’s objection. The State then, through Howard, sought a writ of prohibition to prevent Judge Lane from conducting the trial without a jury. The writ was denied. Shortly thereafter, the State sought in this Court a stay of McGinty’s trial, which this Court granted. Subsequently, the State filed its notice of appeal from the denial of the writ of prohibition, and this appeal was docketed in this Court.
It is incumbent upon this Court to inquire into its own jurisdiction. Collins v. AT&T , 265 Ga. 37 456 SE2d 50 1995. In OCGA § 5-7-1 a, the General Assembly has set forth only a limited right of appeal for the State in criminal cases. See State v. Tyson , 273 Ga. 690, 691 1 544 SE2d 444 2001. Accord Moody v. State , 272 Ga. 55, 56 2 525 SE2d 360 2000; Berky v. State , 266 Ga. 28, 30 463 SE2d 891 1995. The ruling sought to be reversed does not fall within the provisions of OCGA § 5-7-1 a.1 Although Howard argues that the petition for a writ of prohibition is a separate civil proceeding and that the ruling thereon is final and therefore appealable, see OCGA § 5-6-34 a 1, that does not end the inquiry. As we stated in Rebich v. Miles , 264 Ga. 467, 467-468 448 SE2d 192 1994, “the underlying subject matter generally controls over the relief sought in determining the proper appellate procedure.” Here, the underlying subject matter is the criminal prosecution, and the trial court’s ruling entered therein; but for that ruling, the State would not have sought a writ of prohibition. Further, the fact that the first action initiated in this Court, even before the notice of appeal was filed, was to seek a stay of the non-jury trial also shows that the underlying subject matter is the criminal prosecution. And the only matter addressed in the petition for a writ of prohibition was Judge Lane’s order in the criminal proceeding.
