Moon v. The State

• Decision Date: 07 June 2010
• Docket Number: No. S10A0674.,S10A0674.
• Parties: MOONv.The STATE.
• Court: Georgia Supreme Court

287 Ga. 304

696 S.E.2d 55

MOONv.The STATE.

No. S10A0674.

Supreme Court of Georgia.

June 7, 2010.

James W. Smith, Athens, for appellant.

Robert W. Lavender, Dist. Atty., James W. Webb, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., for appellee.

CARLEY, Presiding Justice.

In 2007, Jason Jerome Moon was indicted for murder and other offenses. When the case was called for trial on April 7, 2008, Moon orally moved for a change of venue on the ground of pre-trial publicity and introduced several newspaper articles into evidence. After voir dire, the trial court granted a change of venue, but 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. The State subsequently appealed from a separate order granting a motion to suppress Moon's pre-trial statements, which this Court affirmed in part and reversed in part. State v. Moon, 285 Ga. 55, 673 S.E.2d 255 (2009).

The State then filed a motion to reconsider the change of venue, which a different judge granted on October 1, 2009 on the ground that “there was never a written motion filed as is required by statute, and no evidentiary hearing was ever conducted.” The trial court also held that the State's appeal acted as a supersedeas, and that the order changing venue was collateral and the State was not required to appeal it at the same time as the suppression order. The trial court certified its order for immediate review, and Moon appeals pursuant to our grant of his application for interlocutory appeal.

Moon contends that the trial court was not authorized to grant the motion for reconsideration, because it was not made until after expiration of the term of court in which the order changing venue was entered. 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.’ [Cits.]” Lott v. Arrington & Hollowell, 258 Ga.App. 51, 56(3), 572 S.E.2d 664 (2002). This principle is required by the Civil Practice Act (CPA). OCGA § 9-11-6(c). In criminal cases, however, the pre-CPA rule continues to apply, and a trial court's inherent power to revoke interlocutory rulings still ceases with the end of the term. Pledger v. State, 193 Ga.App. 588, 589(2)(a), 388 S.E.2d 425 (1989). Compare Rooney v. State, 217 Ga.App. 850, 852, 459 S.E.2d 601 (1995) (involving reconsideration of a bond order and distinguishing Pledger). Indeed, this is the general common law rule which applied in federal courts before terms of court were abolished therein. United States v. Breit, 754 F.2d 526, 530 (4th Cir.1985).

Contrary to the trial court's order, any supersedeas during the State's appeal from the suppression order did not affect the time for filing a motion for reconsideration. Where the State files an immediate, direct appeal as of right from a trial court's grant of a motion to suppress evidence illegally seized, the filing of the notice of appeal generally acts as a supersedeas. State v. Vansant, 208 Ga.App. 772, 776(2), 431 S.E.2d 708 (1993), aff'd in relevant part Vansant v. State, 264 Ga. 319, 321(3), 443 S.E.2d 474 (1994). However, this is an application of the general rule in OCGA § 5-6-45. State v. Vansant, supra. Under that statute, the notice of appeal in criminal cases “shall serve as supersedeas in all cases where a sentence of death has been imposed or where the defendant is admitted to bail....” OCGA § 5-6-45(a). As neither condition was met in this case, the notice of appeal filed by the State did not act as a supersedeas and, therefore, did not prevent the trial court from hearing a timely motion for reconsideration. Moreover, even if the notice of appeal did serve as supersedeas, it still did not preclude the simultaneous hearing of a timely motion for reconsideration in the trial court, as the order to be reconsidered would not have involved the execution of a sentence and would not have directly or indirectly affected the issue on appeal. Roberts v. State, 279 Ga.App. 434, 437(1), 631 S.E.2d 480 (2006), overruled on other grounds DeSouza v. State, 285 Ga.App. 201, 202, fn. 2, 645 S.E.2d 684 (2007). “ Filing a notice of appeal may deprive a court of its power to execute the sentence but it does not supersede every other activity of a trial court.” Strickland v. State, 258 Ga. 764, 766(1), 373 S.E.2d 736 (1988).

Therefore, the State could have filed the motion for reconsideration during the same term in which the order changing venue was entered. Because the State failed to do so, the trial court was not authorized to vacate that order. Pledger v. State, supra. See also Harris v. State, 278 Ga. 280, 282, fn. 3, 600 S.E.2d 592 (2004); Donnelly v. Stynchcombe, 246 Ga. 118, 269 S.E.2d 10 (1980). Accordingly, the trial court's order granting the motion for reconsideration is a nullity and must be reversed, and we direct the trial court to reinstate its order changing venue. Chishti v. State, 288 Ga.App. 230, 231, 653 S.E.2d 830 (2007). Remaining enumerations of error are moot. Chishti v. State, supra at 231, fn. 2, 653 S.E.2d 830.

Judgment reversed and case remanded with direction.

All the Justices concur.

NAHMIAS, Justice, concurring.

I join the majority opinion in full, but write separately to make two points about the holding that “[i]n criminal cases, ... the pre-[Civil Practice Act] rule continues to apply, and a trial court's inherent power to revoke interlocutory rulings still ceases with the end of the term. Pledger v. State, 193 Ga.App. 588, 589(2)(a), 388 S.E.2d 425 (1989).” Maj. Op. at 56.

1. First, I think it is important to recognize that this rule, which comes from the pre-Revolution English common law, seems outdated, but this Court probably lacks the authority to change it. At common law, the rule for both final and interlocutory orders, in both civil and criminal cases, and in both Georgia and federal courts, was that the trial court's inherent authority to reconsider the order expired at the end of the term of court in which the order was entered. See, e.g. McCandless v. Conley, 115 Ga. 48, 51, 41 S.E. 256 (1902) (citing cases and Black's A Treatise on the Law of Judgments). The rules in this area reflect a balance between the need for finality of judicial decisions and the understanding that trial courts should have the opportunity to reach the correct decisions.

With respect to final judgments, the common law rule has remained essentially unchanged in civil and criminal cases. It makes sense that when the entire case or relevant portion is deemed concluded by final judgment, the trial court cannot reconsider the issues after a short period (like the end of the term) unless the case is successfully appealed or challenged in one of the other established but highly restrictive exceptions to finality (such as a petition for habeas corpus in criminal cases). Most of the cases cited by the appellant involve final judgments, including Harris v. State, 278 Ga. 280, 282, n. 3, 600 S.E.2d 592 (2004) (after-term motion to reconsider a final order denying habeas corpus petition), and Donnelly v. Stynchcombe, 246 Ga. 118, 269 S.E.2d 10 (1980) (same).

Interlocutory rulings are different. For better or worse, many civil and criminal cases in today's legal system remain pending for more than one-sometimes many more than one-term of court. Where a case remains pending in the trial court across terms, although there are certainly interests in not relitigating the same issues between the same parties or undermining vested interests in initial rulings, those interests are weakened where the trial court realizes, on motion for reconsideration, renewed motion on the same issue, or sua sponte, that it has made an error. The relevant evidence may have changed as the case progressed, or the controlling law may have changed, or the court may simply recognize, upon further reflection, that it made the wrong decision. To avoid fruitless repetition of claims, the trial court must have broad discretion to deny review of its own prior decision. But to hold that the trial court has no authority to do so in a later term is to set in stone some initial rulings that, by the time the case is final and ripe for appeal, are erroneous-perhaps even obviously erroneous. That is contrary both to the interests of justice and judicial economy. Compare OCGA § 15-1-3 (“Every court has power: ... (6) To amend and control its processes and orders, so as to make them conformable to law and justice ...; and (7) To correct its own proceedings before final judgment.”).

As the majority opinion and Pledger explain, the General Assembly adopted this logic with respect to civil cases almost a half-century ago, when the Civil Practice Act reformed many common law rules for civil cases, including eliminating the end-of-term rule with respect to interlocutory rulings, except for rulings that are the subject of an interlocutory appeal. See OCGA § 9-11-6(c) (“The continued existence or expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any civil action which has been pending before it, except as otherwise specifically provided by law.”), OCGA § 9-11-60(h) (“The law of the case rule is abolished; but generally judgments and orders shall not be set aside or modified without just cause and, in setting aside or otherwise modifying judgments and orders, the court shall consider whether rights have vested thereunder and whether or not innocent parties would be injured thereby; provided, however, that any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.”). The reported cases do not suggest that this more flexible rule has created any problems in civil cases, nor am I aware of any...