Full Opinion

Court of Appeals of the State of Georgia ATLANTA,____________________ October 27, 2026 The Court of Appeals hereby passes the following order: A27A0442. THE STATE v. TAHJAY QWESHAWN BINGHAM. Tahjay Qweshawn Bingham was charged with rape, and his trial was set for July 14, 2025. The day of trial, Bingham filed a motion in limine to exclude testimony regarding the contents of a videotape that was not preserved or tendered into evidence. The trial court granted the motion on July 28, 2025, and the State filed a notice of appeal that same day. We, however, lack jurisdiction. The right of the State to appeal in criminal cases is derived statutorily from OCGA § 5-7-1(a) — i.e., that statute “establishes the universe of appeals the State is permitted to seek in criminal cases[.]” State v. Wheeler, 310 Ga. 72, 74(1) (849 SE2d 401) (2020). The only applicable subsection here is OCGA § 5-7-1(a)(5), which provides: (a) An appeal may be taken by and on behalf of the State of Georgia … in the following instances: … (5) From an order, decision, or judgment excluding any other evidence to be used by the state at trial on any motion filed by the state or defendant at least 30 days prior to trial and ruled on prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first, if: (A) Notwithstanding the provisions of Code Section 5-6-38, the notice of appeal filed pursuant to this paragraph is filed within two days of such order, decision, or judgment; and (B) The prosecuting attorney certifies to the trial court that such appeal is not taken for purpose of delay and that the evidence is a substantial proof of a material fact in the proceeding[.] The Supreme Court of Georgia has held that the certification required under OCGA § 5-7-1(a)(5)(B) “must be filed before or with” the notice of appeal required under OCGA § 5-7-1(a)(5)(A). Wheeler, 310 Ga. at 78(4)(b). The requirements of OCGA § 5-7-1(a)(5) “are jurisdictional and must be satisfied to confer jurisdiction on an appellate court.” Id. at 76(3). Here, the motion in limine was not filed at least 30 days prior to trial, and the State did not include the required certification in its initial notice of appeal. While the State has now moved to supplement the record with an amended notice of appeal that includes the required certification, the appeal is still nevertheless due to be dismissed because the motion in limine was not filed at least 30 days prior to trial. Therefore, we lack jurisdiction to consider this appeal. See State v. Arroyo, 315 Ga. 582, 583 (883 SE2d 781) (2023) (explaining that “appellate courts do not have jurisdiction to entertain an appeal filed by the State in a criminal case that falls outside the ambit of [OCGA § 5-7-1 ].” (citation modified)). Accordingly, we DENY the State’s motion to supplement the record on appeal, and this appeal is hereby DISMISSED. Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 10/27/2026 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.