Pounds v. State

• Citation: 309 Ga. 376,846 S.E.2d 48
• Decision Date: 01 July 2020
• Docket Number: S20A0470
• Parties: POUNDS v. The STATE.
• Court: Georgia Supreme Court

309 Ga. 376

846 S.E.2d 48

POUNDS

v.The STATE.

S20A0470

Supreme Court of Georgia.

Decided: July 1, 2020

Nicholas E. White, for appellant.

K. David Cooke, Jr., District Attorney, Jason M. Martin, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Eric C. Peters, Assistant Attorney General, for appellee.

Warren, Justice.

In 2017, William C. Pounds III was convicted of malice murder. Pounds filed a motion for new trial, but did so after the statutory filing deadline for motions for new trial had expired; the motion was therefore untimely. However, the trial court did not dismiss Pounds's motion for new trial as untimely; instead, it denied the motion on the merits. Then, three weeks later, and almost two years after Pounds was convicted, the trial court granted Pounds an out-of-time appeal. But because the trial court's merits ruling on Pounds's late-filed and untimely motion for new trial was invalid, Pounds never obtained a valid ruling on the motion for new trial that preceded his request for an out-of-time-appeal and that ripened upon the grant of the out-of-time appeal. As a result, when Pounds filed a notice of appeal to this Court, his prior motion for new trial was still pending, and the trial court retained jurisdiction to rule on it. For these reasons, as explained more fully below, Pounds's appeal must be dismissed.

1. Procedural History.

On October 25, 2017, the trial court entered Pounds's judgment of conviction and sentence for malice murder. Acting pro se, Pounds filed a purported motion for new trial on October 27, 2017.¹ Later, current appellate counsel—a different attorney than had represented Pounds at trial—began representing Pounds. More than one-and-a-half years after the judgment, appellate counsel filed on May 30, 2019, a motion styled as an "amended motion for new trial" on Pounds's behalf.² The trial court purported to deny the amended motion on the merits on August 20, 2019, and then granted an out-of-time appeal on September 11, 2019. The trial court took no further action related to the motion for new trial, and Pounds filed his notice of appeal on September 20, 2019.

2. Legal Background.

This Court has a duty "to inquire into its jurisdiction to entertain each appeal and review the alleged errors of the trial court." Duke v. State , 306 Ga. 171, 172, 829 S.E.2d 348 (2019) (citation and punctuation omitted). In this case, that duty requires us to consider the interplay between a pro se motion for new trial filed while a defendant is still represented by trial counsel, a late-filed (and thus untimely) motion for new trial, a trial court order ruling on the merits of an untimely motion for new trial, and a grant of an out-of-time appeal, and, in turn, the effect those motions and rulings have on this Court's jurisdiction to hear Pounds's appeal.

(a) Statutory Deadline for Filing a Motion for New Trial.

"All motions for new trial, except in extraordinary cases, shall be made within 30 days of the entry of the judgment on the verdict or entry of the judgment where the case was tried without a jury." OCGA § 5-5-40 (a). Extraordinary motions for new trial are permitted under OCGA §§ 5-5-40 (a) and 5-5-41, but are only "an extraordinary remedy that provides a means for a defendant to seek a new trial outside of the ordinary 30-day period when extraordinary circumstances exist." Mitchum v. State , 306 Ga. 878, 880, 834 S.E.2d 65 (2019). And, generally speaking, an untimely motion for new trial cannot be construed "as an extraordinary motion for new trial [if] it [is] unaccompanied by any attempt to show ‘some good reason ... why the motion was not made during (the 30-day) period’ following entry of the judgment and sentence." Porter v. State , 271 Ga. 498, 499, 521 S.E.2d 566 (1999) (quoting OCGA § 5-5-41 (a) ).

(b) Relevant Precedent Regarding Motions for New Trial.

Our case law establishes a number of additional rules that govern motions for new trial. We review several of them below.

First , regardless of whether the 30-day period after "the entry of the judgment on the verdict or entry of the judgment where the case was tried without a jury," OCGA § 5-5-40 (a), has expired, if a defendant files a motion for new trial on his own behalf when he is still represented by counsel, that motion is a legal nullity. Howard v. State , 307 Ga. 12, 12 n.1, 834 S.E.2d 11 (2019) (defendant's "initial pro se motion [for new trial] was a nullity ... because he was still represented by counsel at the time of filing"); Cotton v. State , 279 Ga. 358, 361, 613 S.E.2d 628 (2005) (explaining that a pro se motion for new trial while represented was "unauthorized and without effect"). See also Dos Santos v. State , 307 Ga. 151, 154-155, 834 S.E.2d 733 (2019) (explaining that "pro se filings by represented parties" are "legal nullities" and therefore "unauthorized and without effect," specifically in the context of motions to withdraw a guilty plea, but also with respect to post-trial motions like motions for new trial).

Moreover, that a new attorney later begins representing a defendant and files a motion for new trial that purports to amend a pro se motion the defendant filed while still represented by previous counsel cannot "breathe life into" that earlier motion, because the earlier motion is an "inoperative pleading" and is thus a legal nullity. Id. at 155 n.4, 834 S.E.2d 733.

Second , we recently explained that a post-conviction motion "filed by counsel, or pro se by a defendant no longer represented by counsel," after expiration of the time allowed for filing of the motion, "is merely untimely, not a legal nullity." Id. at 156 n.5, 834 S.E.2d 733. Notably, however, several of our previous decisions characterized this type of late-filed motion for new trial not as untimely, but as "void."³ See Sanders v. State , 289 Ga. 655, 659, 715 S.E.2d 124 (2011) ; Clemons v. State , 288 Ga. 445, 446, 704 S.E.2d 762 (2011) ; Wicks v. State , 277 Ga. 121, 121, 587 S.E.2d 21 (2003) ; Gulledge v. State , 276 Ga. 740, 741, 583 S.E.2d 862 (2003) ; Fairclough v. State , 276 Ga. 602, 603, 581 S.E.2d 3 (2003) ; Porter , 271 Ga. at 498, 521 S.E.2d 566 ; Johnson v. State , 227 Ga. 219, 219, 180 S.E.2d 94 (1971). The characterization is at best a misnomer, because motions for new trial that are filed late and are thus untimely are not void in the sense that they are legal nullities without any effect.⁴

Indeed, under our case law, a late-filed and untimely motion for new trial generally can become effective, if and when an out-of-time appeal is granted. We have explained this theory as follows: "Once [an] out-of-time appeal [i]s granted, it reset[s] the time for [the defendant's] post-trial proceedings[,] and his motion for new trial, which [was] untimely, ripen[s]." Lay v. State , 305 Ga. 715, 715 n.1, 827 S.E.2d 671 (2019) ; see also Fairclough , 276 Ga. at 603, 581 S.E.2d 3 (because the grant of an out-of-time appeal permits a defendant "to start the post-conviction process anew" and "to pursue the post[-]conviction remedy of a new trial," and because it is the "functional equivalent of the entry of a judgment," the grant of an out-of-time appeal renders a motion for new trial filed more than 30 days after entry of the judgment "one which was only prematurely filed[,] and this prematurity will not serve to deprive the appellate court of jurisdiction to review the merits of the appeal") (citations and punctuation omitted; emphasis in original).⁵ As a result, a late-filed motion for new trial is untimely when it is filed but is not void insofar as a trial court's later actions could breathe new life into it.

Third , absent the grant of an out-of-time appeal, the appropriate disposition for a late-filed motion for new trial that cannot be construed as an extraordinary motion for new trial is for the trial court to dismiss the motion as untimely. See Ricks v. State , 307 Ga. 168, 170, 835 S.E.2d 179 (2019) (whether a late-filed post-conviction motion is a legal nullity or "merely untimely," the trial court should dismiss the motion, rather than make any ruling on the merits). That is because the trial court does not have jurisdiction to rule on the merits of a motion for new trial filed after the 30 days permitted by OCGA § 5-5-40 (a). See Ricks , 307 Ga. at 170, 835 S.E.2d 179 (when a post-conviction motion was filed after expiration of the time allowed, the trial court "no longer had jurisdiction" to rule on the merits); Brooks v. State , 301 Ga. 748, 751-752, 804 S.E.2d 1 (2017) (holding that the trial court "lacked jurisdiction" to consider a late post-conviction motion, and stating that "when a trial court is presented with a motion it lacks jurisdiction to decide, the trial court should dismiss the motion rather than deny it"). See also Gable v. State , 290 Ga. 81, 85, 720 S.E.2d 170 (2011) (although in certain cases we "have excused a party's failure to comply with court rules and other non-jurisdictional procedural requirements, ... courts have ‘no authority to create equitable exceptions to jurisdictional requirements’ imposed by statute.") (quoting Bowles v. Russell , 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) ).⁶ Indeed, an order disposing of a late-filed motion for new trial on the merits would itself be invalid. See Brooks , 301 Ga. at 752, 804 S.E.2d 1 (an order plainly denying on the merits an untimely post-conviction motion cannot function as an authorized dismissal of the motion and is subject only to vacatur). Cf. Duke , 306 Ga. at 172, 829 S.E.2d 348 (statutory provisions "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") (citation and punctuation omitted).

Importantly, however, whereas our case law permits a prematurely...