Duke v. State, S19M0969

CourtSupreme Court of Georgia
Citation829 S.E.2d 348
Docket NumberS19M0969
Parties DUKE v. The STATE.
Decision Date10 June 2019

829 S.E.2d 348



Supreme Court of Georgia.

Decided: June 10, 2019

John Sikes Gibbs, III, Troutman Sanders LLP, 600 Peachtree Street NE, Suite 3000, Atlanta, Georgia 30308, Ashleigh Bartkus Merchant, John B. Merchant, III, THE MERCHANT LAW FIRM, P.C., 701 Whitlock Avenue Suite J43, Marietta, Georgia 30064, for Appellant.

Clifford Paul Bowden, District Attorney, Jennifer Dawn Hart, A.D.A., TIFTON JUDICIAL CIRCUIT DISTRICT ATTORNEY'S OFFICE, 225 North Tift Avenue, 3rd Floor Tifton, Georgia 31794, Bradford Lee Rigby, District Attorney, CORDELE JUDICIAL CIRCUIT DISTRICT ATTORNEY'S OFFICE, PO Box 5510, Cordele, Georgia 31010, Christopher M. Carr, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellee.

Bethel, Justice.

829 S.E.2d 351

On April 12, 2017, Ryan Alexander Duke was indicted for malice murder, felony murder, aggravated assault, burglary, and concealing the death of another in connection with the October 23, 2005, death of Tara Grinstead. Duke was initially provided counsel through the Tifton Judicial Circuit Public Defender’s office, but, in September 2018, he obtained pro bono private counsel. The case was set for trial in Irwin County Superior Court, and, in the lead-up to trial, Duke filed a series of motions in the trial court seeking public funding for expert witnesses and investigators to aid his defense.

Notwithstanding the trial court’s finding that Duke is indigent and that the assistance of experts is necessary to mount a proper defense, his motions were denied, and the trial court did not grant Duke’s request for a certificate of immediate review pursuant to OCGA § 5-6-34 (b). In the absence of a certificate from the trial court, Duke filed both a motion asking this Court to stay the proceedings below and an application asking the Court to exercise discretion to allow an interlocutory appeal pursuant to the analysis set forth in Waldrip v. Head , 272 Ga. 572, 574-577 (1), 532 S.E.2d 380 (2000). This Court granted Duke’s request for supersedeas and stay, but we held Duke’s application to appeal in abeyance pending consideration of whether Waldrip should be overruled. Briefing and oral argument proceeded on that issue.

For the reasons set forth below, we overrule Waldrip to the extent it permits this Court to disregard the requirement set forth in OCGA § 5-6-34 (b) that a party must obtain a certificate of immediate review from the trial court before pursuing an interlocutory appeal not otherwise authorized by OCGA § 5-6-34 (a). Because the trial court did not issue a certificate of immediate review in this case, this Court is without jurisdiction to consider Duke’s application for interlocutory appeal. His application is therefore dismissed. The stay we previously issued in this case will dissolve when our remittitur is received by and filed in the trial court.

1. Statutory Requirements for Interlocutory Review are Jurisdictional .

"The solemn duty devolves upon this [C]ourt to inquire into its jurisdiction to entertain each appeal and review the alleged errors of the trial court." Byrd v. Goodman , 192 Ga. 466 (1), 15 S.E.2d 619 (1941). "Georgia law is well settled that the right to appeal is not constitutional, but instead depends on statutory authority." Jones v. Peach Trader , Inc. , 302 Ga. 504, 511 (III), 302 Ga. 504, 807 S.E.2d 840 (2017). "The provisions of the law respecting the procedure to be followed in perfecting appeals to this court are jurisdictional, and unless this court has jurisdiction of a case, it is without power or authority to render a judgment upon review." Spivey v. Nalley , 212 Ga. 810, 810, 96 S.E.2d 260 (1957). "The jurisdiction of an appellate court to consider an appeal depends upon whether the appeal is taken in substantial compliance with the rules of appellate procedure prescribing the conditions under which the judgment of the trial court may be considered appealable." (Citation omitted.) Fulton County v. State , 282 Ga. 570, 570 (1), 651 S.E.2d 679 (2007).

OCGA § 5-6-34 governs what trial court orders may be reviewed immediately by an appellate court. Specifically, subsection (a) of the statute lists the trial court judgments and orders that may be appealed immediately. This list includes "[a]ll final judgments ... where the case is no longer pending in the court below." OCGA § 5-6-34 (a) (1).1

Other cases can be appealed immediately only with permission from both the trial court and the appellate court. OCGA § 5-6-34 (b). When a trial court enters an order, decision, or judgment not otherwise subject to immediate appeal under OCGA § 5-6-34 (a), appeal from that order may be had only "[w]here the trial judge ... certifies within ten days of entry thereof that the order, decision, or judgment is of such importance

829 S.E.2d 352

to the case that immediate review should be had." OCGA § 5-6-34 (b). Upon such certification, "the Supreme Court or the Court of Appeals may thereupon, in their respective discretions, permit an appeal to be taken from the order, decision or judgment ..." Id.

Through the collateral order doctrine, we have also recognized that "a very small class of interlocutory rulings are effectively final in that they finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." State v. Cash , 298 Ga. 90, 92-93 (1) (b), 779 S.E.2d 603 (2015). Thus, "an order that satisfies the requirements of the collateral order doctrine is considered to be effectively final and would be appealable because it comes within the terms of a relevant statutory right to appeal final judgments," namely the right prescribed in OCGA § 5-6-34 (a) (1). Id. at 93 (1) (b), 779 S.E.2d 603. Both before and after Waldrip , this Court has characterized the statutory requirements for bringing an interlocutory appeal as jurisdictional in nature—that is, if a requirement is not satisfied, the appellate court is without jurisdiction to consider the case. See, e.g., Jones , 302 Ga. at 510 (II), 807 S.E.2d 840 ("[A]n attempt to appeal an interlocutory order without following the procedures statutorily mandated is ineffective in conferring jurisdiction on the appellate court." (citation and punctuation omitted)); Islamkhan v. Khan , 299 Ga. 548, 551 (2), 787 S.E.2d 731 (2016) (because appellant failed to "follow the required procedures for obtaining appellate review" of interlocutory order "his attempted appeal was a nullity and incapable of activating the appellate jurisdiction of this Court"); Cherry v. Coast House, Ltd. , 257 Ga. 403, 404, 359 S.E.2d 904 (1987) ("[W]hen the order appealed from is an interlocutory order, the appellate court does not acquire jurisdiction unless the procedure of OCGA § 5-6-34 (b) for interlocutory appeal is followed."); Fife v. Johnston , 225 Ga. 447, 447, 169 S.E.2d 167 (1969) ("[T]he right of appeal is not absolute, but is one based upon the conditions imposed by the General Assembly for bringing cases to the appellate courts.").

We have said the same about many other statutory requirements for appeal. See, e.g., Crosson v. Conway , 291 Ga. 220, 221-222 (2), 728 S.E.2d 617 (2012) (noting that both a timely notice of appeal filed in the trial court and a timely application for certificate of probable cause filed in this Court are necessary to invoke this Court’s jurisdiction over an appeal from the denial of a petition for habeas corpus pursuant to OCGA § 9-14-52 (b) ); Cody v. State , 277 Ga. 553, 553, 592 S.E.2d 419 (2004) (holding that compliance with the deadline for filing a notice of appeal set forth in OCGA § 5-6-38 (a) is an "absolute requirement" to confer jurisdiction on an appellate court); Rebich v. Miles , 264 Ga. 467, 468, 448 S.E.2d 192 (1994) ("Appeals in cases to which OCGA § 5-6-35 (a) (1) applies must come by timely application, and if they come instead by a notice of appeal, the appellate court is without jurisdiction and must dismiss the appeal.").

The order at issue in this case is clearly not a final judgment, as Duke’s case remains pending in the court below. Duke has also made no argument before this Court that the trial court order is otherwise immediately appealable under OCGA § 5-6-34 (a).

Moreover, despite his counsel’s eleventh-hour efforts at oral argument to characterize the order at issue as a collateral order, that argument plainly fails. Under the collateral order doctrine, an order that does not resolve the entire case in the trial court may be appealed immediately if it "(1) resolves an issue that is ‘substantially separate’ from the basic issues to be decided at trial, (2) would result in the loss of an important right if review had to await final judgment, and (3) completely and conclusively decides the issue on appeal such that nothing in the underlying action can affect it." Fulton County , 282 Ga. at 571, 651 S.E.2d 679. Duke has acknowledged that his opportunity for appellate review of the order will not be lost if his appeal must await final judgment. Indeed, in his application before this Court, Duke argued that, should he be found guilty,...

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