Kelly v. State

• Decision Date: 18 January 2023
• Docket Number: S22A0979
• Parties: KELLY v. THE STATE
• Court: Georgia Supreme Court

KELLY v. THE STATE

No. S22A0979

Supreme Court of Georgia

January 18, 2023

WARREN, Justice.

After Jeremiah Kelly was convicted of murder, the trial court granted his motion for new trial, but gave the State an opportunity to request a rehearing within 30 days. The State filed such a request within that time, but did so after the expiration of the term of court in which the order granting a new trial was entered. Nevertheless, the trial court purported to enter a denial of Kelly's motion for new trial. Kelly appeals from the trial court's order denying his motion for new trial. Because the trial court did not have jurisdiction to consider the State's out-of-term request for rehearing or to enter an order denying the motion for new trial, we vacate that order and remand the case for further proceedings pursuant to the trial court's initial order granting Kelly a new trial.

1. Kelly was convicted of felony murder and other crimes in connection with the shooting death of Anthony Dewayne King and the aggravated assaults of Anthony Davis and Travis Davis.^[1]Through trial counsel, Kelly timely filed a motion for new trial on April 8, 2015.^[2] On March 7, 2019 Kelly filed a motion to disqualify the District Attorney's office based on an alleged conflict of interest, and current appellate counsel renewed that motion on March 31, 2021. On April 22, 2021, the trial court entered a consent order granting Kelly's motion to disqualify and directed the Attorney General's office to appoint conflict counsel within 30 days.

On October 19, 2021, at a hearing on the motion for new trial (and nearly six months after the trial court had directed the Attorney General to appoint conflict counsel within 30 days) the assistant district attorney explained that the Attorney General had not been able to find a prosecutor to volunteer to take this case and had not yet appointed conflict counsel for the State. Although there was no lawyer present at the hearing who could represent the State without conflict, the trial court heard testimony from Kelly and argument from his appellate counsel and asked counsel to "prepare" for the court "an order giving the State 30 days if they want to file for a motion for a rehearing," and "if we don't hear anything from the State during that period of time, then . . . prepare an order granting [Kelly's] motion for new trial based on ineffective assistance of counsel." One week later, on October 26, 2021, the trial court entered an order, apparently drafted by Kelly's appellate counsel, granting Kelly's motion for new trial based on ineffective assistance of counsel and providing that "[t]he State is specially allowed to request a re-hearing on the motion within thirty days from the filing of this order."

The Attorney General then appointed a district attorney pro tempore, who filed an entry of appearance on November 3, 2021. A new term of court began on Monday, November 15, 2021. See OCGA § 15-6-3 (5) (B) (providing that the terms of court for the Superior Court of Richmond County commence on the "[t]hird Monday in January, March, May, July, September, and November"). On November 23, 2021-eight days after the new term of court began but within 30 days of the October 26, 2021 order-the State filed a single-page request for a rehearing on Kelly's motion for new trial.^[3] On December 21, 2021, Kelly's appellate counsel filed a brief arguing that the trial court had lost jurisdiction to reconsider its order granting Kelly's motion for new trial.^[4] And at a hearing held that same day, appellate counsel argued that the trial court had lost jurisdiction to reconsider the motion for new trial it had already granted Kelly because, among other reasons, the State's request for a rehearing was filed after the term of court had expired. The trial court took that matter "under advisement" and "reserve[d its] ruling," but orally granted the district attorney's request for rehearing, reopened the hearing on Kelly's motion for new trial, and heard additional testimony and argument from both parties on the substance of the motion.

After both parties filed briefs on the jurisdictional issue and the State filed a substantive "opposition" to Kelly's amended motion for new trial, the trial court entered an order on January 25, 2022, denying Kelly's amended motion for new trial and explaining only that it "adopt[ed] the reasoning and law set forth in the State's brief in opposition to the Motion for New Trial." The trial court did not address the jurisdictional issue Kelly had raised and did not specifically address or evaluate any of Kelly's claims. Kelly timely filed a notice of appeal from the trial court's denial of his amended motion for new trial.^[5]

2. On appeal, Kelly contends that the trial court was without jurisdiction to consider the State's request for a rehearing because it was filed outside the term of court. We agree.

Generally speaking, a trial court "has the inherent power during the same term of court in which the judgment was rendered to revise, correct, revoke, modify or vacate the judgment, even upon its own motion." Barlow v. State, 279 Ga. 870, 872 (621 S.E.2d 438) (2005). But "such authority generally does not extend beyond the same term of court, unless a motion to modify, or vacate, or the like was filed within the same term of court." Id. (citations omitted). "In civil cases, an interlocutory ruling does not pass from the control of the court at the end of the term if the cause remains pending." Moon v. State, 287 Ga 304, 304 (696 S.E.2d 55) (2010) (citations and punctuation omitted) In criminal cases, however, "a trial court's inherent power to revoke interlocutory rulings [ ] ceases with the end of the term" unless a motion for reconsideration is filed during the same term as the ruling at issue Id. (citing Pledger v State, 193 Ga.App. 588, 589 (388 S.E.2d 425) (1989), which held that a trial court's inherent power in a criminal case to vacate the grant of a new trial and reinstate the judgment of conviction expired at the end of the term, and noted that a court's inherent power "during, but not beyond, the term as to criminal cases has not been modified by statute, as have those cases civil in nature") See also Moon, 287 Ga at 305-309 (Nahmias, J, concurring) (explaining that this rule "makes sense" when applied to final judgments in criminal and civil cases, "seems outdated" in the context of interlocutory orders in criminal cases, can be revised only by the General Assembly and not through judicial decision, and does not preclude "after-term reconsideration, at least of constitutional issues, where the 'evidentiary posture' of the issue has changed").

The State properly concedes that it "has no credible way to challenge" the "long-standing maxim" from Barlow articulated above. In other words, the State does not dispute that, in a criminal case, a trial court generally loses its inherent power to revise, correct, revoke, modify, or vacate its judgment at the end of the term of court in which it renders that judgment. And citing Moon, it further concedes, as it must, that "the expiration of a court term supersedes any language in a court's order granting a party time to file a motion for reconsideration" and that such language in the trial court's order granting a new trial in this case "could not extend the trial court's authority to reconsider Kelly's motion for new trial" and indeed "had no effect on whether it lost jurisdiction to reconsider its order after the end of the September court term." See Moon 287 Ga. at 304-305 (applying the rule against out-of-term reconsideration to an order granting a change of venue where the trial court "stated that the State could file a motion to reconsider, and ordered the parties either to agree on a proper venue or to bring the matter back by motion for the court to determine a proper venue," holding that an order granting an out-of-term motion for reconsideration was a "nullity," and directing the trial court "to reinstate its order changing venue"). See also Long, 247 Ga. at 625 (where the trial court's final order stated that "each party may file objections to this order during the next 30 days," and appellant did so but the term of court had expired by that time, the trial court "no longer had jurisdiction of the matter," and because no notice of appeal was filed within 30 days of that order, the appeal from a later order purporting to affirm the final order had to be dismissed for lack of jurisdiction). Thus, the trial court's order denying Kelly's motion for new trial was a nullity and must be vacated.

3. Though it largely accepts this reality, the State nonetheless argues that the trial court's initial order granting Kelly's motion for new trial must be vacated because it was "null and void for failure

to comply with due process and fundamental fairness." The State offers several lines of reasoning to support its contention that "[t]he process by which the trial court issued its October 26 order was fundamentally unfair" and that the order was therefore void: that the initial hearing on Kelly's motion for new trial was held over both parties' objections and the hearing and order were "functionally ex parte"; that the written order did not reflect the trial court's oral ruling, and in fact reflected "nearly the opposite"; that the order was drafted by Kelly's counsel and adopted by the trial court without giving the State an opportunity to respond; and that the State's failure to appeal directly from the trial court's written order "was dictated by circumstances beyond the State's control." However, as explained more below, many of the State's contentions boil down to a faulty premise that the State had due process rights in the course...