Moore v. State
Decision Date | 21 May 2018 |
Docket Number | S18A0509 |
Citation | 814 S.E.2d 676 |
Parties | MOORE v. The STATE. |
Court | Georgia Supreme Court |
Carzell Moore, pro se.
Jonathan L. Adams, District Attorney, Steven C. Ouzts, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.
Carzell Moore appeals from a trial court order rejecting his "Amended Motion for Out of Time Appeal." For the reasons that follow, we affirm.
In 1977, Moore was convicted of the rape and murder of Teresa Allen, and sentenced to death. Moore v. State , 240 Ga. 807, 243 S.E.2d 1 (1978). In a federal habeas corpus case, Moore was granted a new sentencing proceeding. See Moore v. Kemp , 809 F.2d 702 (11th Cir. 1987) ; Moore v. Zant , 682 F.Supp. 549 (M.D. Ga. 1988). In the course of the new state sentencing proceeding, the State filed notice of its intent to seek the death penalty; Moore moved in the trial court to bar the State from seeking the death penalty, the trial court denied the motion, and this Court affirmed. Moore v. State , 263 Ga. 586, 436 S.E.2d 201 (1993). On June 18, 2002, Moore, assisted by counsel, pled guilty to rape and malice murder, and was sentenced to life imprisonment without the possibility of parole under former OCGA § 17-10-30.1,1 the trial court finding aggravating circumstances to exist surrounding the murder, including rape.
On June 22, 2017, Moore, acting pro se, filed a motion for an out-of-time appeal in the Superior Court of McDuffie County, alleging that the sentence of life without the possibility of parole was void, that his sentence contravened public policy, and that counsel who represented him during the 2002 plea and sentencing hearing was ineffective; Moore also moved that venue be changed to the Superior Court of Monroe County, which was granted. On September 20, 2017, addressing Moore’s motion for an out-of-time appeal, the Superior Court of Monroe County denied the motion, finding that Moore had elected to enter his guilty pleas and accept a sentence of life imprisonment without the possibility of parole after discussing the matter with counsel "for some time prior to the hearing." The court also found that the sentence was not a void sentence, did not contravene public policy under OCGA § 17-10-16 and Brantley v. State , 268 Ga. 151, 153, 486 S.E.2d 169 (1997), and that Moore was not prejudiced by the sentence, as the State intended to seek the death penalty and Moore benefitted from the pleas by not having to face it.
Moore did not file a notice of appeal from the September 20, 2017 order; rather, on October 3, 2017, he filed in the trial court what he styled an "Amended Motion for Out of Time Appeal."2 On October 19, 2017, the court rejected the motion, finding that it was untimely in light of the trial court’s September 20, 2017 denial of the initial motion; as to the merits, the court also ruled that there was no violation of Moore’s due process rights during the 2002 hearing, and that Moore’s 2002 trial counsel was not ineffective. On November 3, 2017, Moore filed his notice of appeal, specifying that it was taken from the October 19, 2017 order.
Brooks v. State , 301 Ga. 748, 752 (2), 804 S.E.2d 1 (2017).
Certainly the trial court addressed the merits of Moore’s motion. But, the situation in this case differs significantly from that in Brooks ; here the order reveals that the trial court ruled on the merits of Moore’s motion in addition to its jurisdictional ruling, essentially advancing alternative bases for rejecting the requested relief. See Rooney v. State , 287 Ga. 1, 2 (1), 690 S.E.2d 804 (2010). Accordingly, this is not a case in which the trial court merely decided the merits of a motion over which it lacked jurisdiction, and it is not necessary for us to vacate the order and remand to the trial court with instructions to dismiss the case. Brooks , supra. See also Ricks v. State , 303 Ga. 567, 568 (n. 1), 814 S.E.2d 318 (2018).6 Accordingly, the judgment of the trial court is affirmed.
Judgment affirmed.
All the Justices concur.
1 Sentences of life in prison without the possibility of parole are now governed by OCGA § 17-10-16.
2 In this motion, Moore stated that he was incorporating his original motion and added a claim asserting that his due process rights were violated during the 2002 re-sentencing hearing in that the court did not specify which crime served as the basis for his sentence of life without the possibility of parole.
3 OCGA § 5-6-34 (a) reads in pertinent part:
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