Sanders v. State

• Citation: 313 Ga. 191,869 S.E.2d 411
• Decision Date: 15 February 2022
• Docket Number: S21A0983
• Parties: SANDERS v. The STATE.
• Court: Supreme Court of Georgia

313 Ga. 191

869 S.E.2d 411

SANDERS

v.The STATE.

S21A0983

Supreme Court of Georgia.

Decided: February 15, 2022

Robert E. Wilson, Andrew Whatley Yates, Wilson, Morton & Downs, LLC, Two Decatur TownCenter, 125 Clairemont Avenue, Suite 420, Decatur, Georgia 30030, R. Stephen Roberts, R. Stephen Roberts, PC, 2786 North Decatur Road, Suite 245, Decatur, Georgia 30033, for Appellant.

Tristan Wade Gillespie, A.D.A., Tasha Helen Pennant, A.D.A., Patsy A. Austin-Gatson, District Attorney, Gwinnett County District Attorney's Office, 75 Langley Drive, Lawrenceville, Georgia 30046, Christopher M. Carr, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellee.

Bethel, Justice.

In this granted interlocutory appeal, Kelly Sanders challenges the denial of her special demurrer as to the six-count second indictment against her, arguing that it is insufficient in a number of ways. After Sanders filed her notice of appeal from the denial of her special demurrer, the State indicted Sanders a third time, and the trial court entered orders of nolle prosequi as to the first and second indictments. The State argues that because Sanders was indicted a third time and the trial court purported to dismiss the second indictment that is the subject of this appeal, Sanders’ appeal is moot. We disagree that Sanders’ appeal is moot. Rather, the purported order of nolle prosequi with respect to the second indictment was a nullity. We further conclude that Counts 2, 4, and 5 of the second indictment are subject to a special demurrer. However, we hold that Counts 1, 3, and 6 are not subject to a special demurrer on the grounds argued by Sanders in her appeal. Accordingly, we affirm in part and reverse in part.¹

Procedural History

1. The victim in this case, Eugene Singletary, was shot and killed on January 22, 2018. On April 18, 2018, a Gwinnett County grand jury indicted Sanders for felony murder predicated on conspiracy to commit possession of methamphetamine, conspiracy to commit possession of methamphetamine, conspiracy to commit aggravated assault, criminal solicitation, and trafficking methamphetamine or amphetamine (the "First Indictment").² Sanders filed a special demurrer to the First Indictment on May 10, 2018, but the trial court never held a hearing regarding that demurrer.³

On February 26, 2020, a Gwinnett County grand jury re-indicted Sanders for two counts of felony murder predicated on conspiracy to commit aggravated assault and conspiracy to commit armed robbery (Counts 1 and 2, respectively); conspiracy to commit aggravated assault (Count 3); conspiracy to commit armed robbery (Count 4); criminal solicitation (Count 5); and trafficking methamphetamine or amphetamine (Count 6) (the "Second Indictment"). On January 12, 2021, Sanders filed a special demurrer to the Second Indictment,⁴ which the trial court summarily denied on January 22, 2021. Sanders filed a request for a certificate of immediate review on January 25, 2021, and the trial court granted and filed both the certificate of immediate review and an amended certificate of immediate review that same day. This Court granted Sanders’ application for interlocutory appeal on March 11, 2021. On March 17, 2021, Sanders filed a notice of appeal directed to this Court, which she amended on March 19, 2021.

On May 26, 2021, a Gwinnett County grand jury re-indicted Sanders for felony murder, conspiracy to commit aggravated assault, criminal solicitation, and trafficking methamphetamine or amphetamine. On June 9, 2021, the State moved the trial court to enter an order of nolle prosequi as to the First Indictment, and the trial court did so that day. On June 21, 2021, the State moved the trial court to enter an order of nolle prosequi as to the Second Indictment, which it did that same day.

2. As a preliminary matter, the State argues that Sanders’ appeal is now moot because the trial court entered an order of nolle prosequi as to the Second Indictment after Sanders filed her notice of appeal. We disagree.

A notice of appeal generally divests the trial court of jurisdiction to alter the judgment or order that is being appealed. See Ricks v. State , 303 Ga. 567, 568, 814 S.E.2d 318 (2018) (noting that where a notice of appeal remains pending, the appeal acts as supersedeas so that the trial court lacks jurisdiction to consider a motion challenging the same judgment on appeal, and the trial court's ruling is a nullity necessitating vacating the trial court order); Peterson v. State , 274 Ga. 165, 171 (6), 549 S.E.2d 387 (2001) ("A notice of appeal divests the trial court of jurisdiction to alter a judgment while appeal of that judgment is pending."); see also Styles v. State , 245 Ga. App. 90, 92, 537 S.E.2d 377 (2000) (Blackburn, P.J., concurring specially) (explaining that the "loss of jurisdiction" resulting from an appeal in a criminal case applies to all "proceedings which either require a ruling on the matters on appeal or directly or indirectly affect such matters"), abrogated on other grounds by Islamkhan v. Khan , 299 Ga. 548, 552 (2) n.7, 787 S.E.2d 731 (2016).

The scope of the supersedeas effect upon filing a notice of appeal is governed by different statutes. Under OCGA § 5-6-34 (b), the filing of the notice of appeal after the grant of an interlocutory application acts as a supersedeas, meaning the order appealed from cannot go into effect. See OCGA § 5-6-34 (b) (providing that a notice of appeal timely filed after the grant of an appeal "shall act as a supersedeas as provided in Code Section 5-6-46 and the procedure thereafter shall be the same as in an appeal from a final judgment"); see also Carr v. State , 303 Ga. 853, 870 (6) n.19, 815 S.E.2d 903 (2018) (noting that appellant's notice of appeal following the grant of his application for interlocutory appeal should have acted as supersedeas). We have previously held that this Code section is a jurisdictional law that applies in criminal cases, see Duke v. State , 306 Ga. 171, 177 (3) (a), 829 S.E.2d 348 (2019), and the reference to the notice of appeal acting as a supersedeas "as provided in Code Section 5-6-46" means that the General Assembly intended that the supersedeas in a granted interlocutory application triggered by the filing of a notice of appeal would act in the same manner as a supersedeas in a civil action. See, e.g., Jones v. Peach Trader, Inc. , 302 Ga. 504, 508 (II), 807 S.E.2d 840 (2017) (noting that "supersedeas is presumed to attach in civil cases as soon as a notice of appeal is filed" and "deprives the trial court of the authority to act on the judgment on appeal").

In contrast, OCGA § 5-6-45 provides for supersedeas in criminal cases involving the death penalty and where the defendant is admitted to bail. See OCGA § 5-6-45 (a) ("In all criminal cases, the notice of appeal filed as provided in Code Sections 5-6-37 and 5-6-38 shall serve as supersedeas in all cases where a sentence of death has been imposed or where the defendant is admitted to bail."). This means that the trial court cannot authorize the execution of a convicted defendant or, if the defendant is out on bail, require her to start serving her sentence while her appeal is pending.

Citing Waters v. State , 174 Ga. App. 438, 439 (1), 330 S.E.2d 177 (1985), the State argues that OCGA § 5-6-45 (a) governs the notice of appeal here, and because Sanders has not been sentenced to death or admitted to bail, that there is no supersedeas in effect. We deem that contention unpersuasive. Sanders’ appeal is before us following the timely grant of a certificate of immediate review and the grant of an appeal by this Court pursuant to OCGA § 5-6-34 (b). Thus, OCGA § 5-6-45 (a) does not govern the application of supersedeas here, but rather, OCGA § 5-6-34 (b) does. Moreover, under the general principle that the trial court is divested of jurisdiction to alter the judgment or order appealed from, the trial court was without jurisdiction to nolle pros the Second Indictment. See Ricks , 303 Ga. at 568, 814 S.E.2d 318. Because Sanders’ notice of appeal deprived the trial court of the authority to enter an order of nolle prosequi as to the Second Indictment while this appeal was pending, the order of nolle prosequi was a nullity. See OCGA § 5-6-34 (b) ; see also Carr , 303 Ga. at 870 (6) n.19, 815 S.E.2d 903.

The cases cited by the State in its argument on this question are inapposite, as none of them involve the supersedeas effect of an interlocutory appeal regarding the denial of a special demurrer of an indictment on which the trial court later took action. See State v. LeJeune , 276 Ga. 179, 184-185 (3) (4), 576 S.E.2d 888 (2003) (trial court's granting the State's request for order of nolle prosequi of a second indictment, following the quashing of the first indictment, did not trigger the statute barring the State from continuing to prosecute a defendant if a trial court has twice quashed charges against him, and the filing of a notice of appeal as to the first indictment did not divest the trial court of jurisdiction to grant the State's petition for a nolle prosequi order as to the second indictment); Strickland v. State , 258 Ga. 764, 765 (1), 373 S.E.2d 736 (1988) (filing of a notice of appeal on an order denying a plea of former jeopardy does not divest a trial court of jurisdiction to amend the order, nunc pro tunc, to find the plea frivolous and dilatory); Brown v. State , 322 Ga. App. 446, 447-450 (1), 745 S.E.2d 699 (2013) (notice of appeal as to the first indictment did not act as supersedeas as to trial court's consideration of the second indictment where trial court's consideration did not directly or indirectly affect the issues on appeal); Blanton v. State , 324 Ga. App. 610, 613-614 (1), 751 S.E.2d 431 (2013) (after being re-indicted a third time, defendant appealed, and the Court of...