Lewis v. State
| Decision Date | 01 December 1981 |
| Docket Number | No. 37910,37910 |
| Parties | LEWIS v. The STATE. |
| Court | Georgia Supreme Court |
Ralph M. Walke and Richard T. Taylor, Dublin, for William gary lewis.
Beverly B. Hayes, Dist. Atty., H. Jeff Lanier, Asst. Dist. Atty., Dublin, for the State.
We granted certiorari to determine whether or not the Court of Appeals properly declined to pass upon an enumeration of error that the evidence was insufficient to support the verdict. Lewis v. State, 159 Ga.App. 301, 283 S.E.2d 275 (1981).
The Court of Appeals first reached the general grounds and determined that the evidence did not support the verdict. Then on motion for rehearing by the state, the Court of Appeals withdrew that opinion and substituted a new opinion ignoring the enumeration of error presenting the general grounds and reversing, as in the companion case of Falsetta v. State, 158 Ga.App. 392(1), 280 S.E.2d 411 (1981), on a ground relating to the response of a juror during voir dire.
The withdrawn opinion of the Court of Appeals, if not properly withdrawn by the court, would have precluded Lewis' retrial under double jeopardy principles enunciated by the Supreme Court of the United States, whereas the ground for reversal upon which the Court of Appeals put its second or rewritten opinion would have allowed Lewis to be retried. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).
1. We face squarely in the present case the situation to which we alluded in passing in footnote 6 of our opinion in Hall v. State, 244 Ga. 86, 94, 259 S.E.2d 41 (1979). See also, Knowles v. State, 246 Ga. 378, 385(12), 271 S.E.2d 615 (1980), and Stewart v. State, 246 Ga. 70, 76(5), 268 S.E.2d 906 (1980).
Recognizing that arguments to the contrary would be "strained and unsatisfying", the state concedes that an appellate court may not ignore an enumeration of error regarding the insufficiency of the evidence to support a conviction in the situation presented by the case at bar, that is, where the contention is made that the evidence is insufficient to support the verdict even prior to the exclusion of any improperly admitted evidence. We agree, and adhere to views expressed in Hall v. State, supra.
2. Lewis now contends for the first time that Burks v. United States, supra, precludes withdrawal, and requires reinstatement, of the first opinion of the Court of Appeals that reversed the trial court on the general grounds....
To continue reading
Request your trial
-
Davis v. State
...that the evidence was insufficient to support his conviction, we must address that enumeration of error. See Lewis v. State, 248 Ga. 566, 566(1), 285 S.E.2d 179 (1981) (holding that the Court of Appeals cannot properly ignore an enumeration of error regarding insufficiency of evidence to su......
-
Wilson v. State
...including evidence improperly admitted, see Division 3, infra, was insufficient to support his convictions. See Lewis v. State, 248 Ga. 566(1), 285 S.E.2d 179 (1981); Hall v. State, 244 Ga. 86(5), 259 S.E.2d 41 ...
-
Barksdale v. State
...2 of this opinion, infra, was improperly admitted. Wilson v. State, 254 Ga. 473, 475, n. 2, 330 S.E.2d 364 (1985); Lewis v. State, 248 Ga. 566(1), 285 S.E.2d 179 (1981).3 Although the State does not now contend that the videotape was admissible under another exception to the hearsay rule, w......
-
Carswell v. State, 67997
...appellant's guilt of the crime for which he was indicted. The present case is distinguishable in that regard from Lewis v. State, 248 Ga. 566(1), 285 S.E.2d 179 (1981), where the Supreme Court held that "an appellate court may not ignore an enumeration of error regarding the insufficiency o......