Southall v. State

• Citation: 796 S.E.2d 261,300 Ga. 462
• Decision Date: 23 January 2017
• Docket Number: S16A1721
• Parties: SOUTHALL v. The STATE.
• Court: Supreme Court of Georgia

300 Ga. 462

796 S.E.2d 261

SOUTHALL

v.The STATE.

S16A1721

Supreme Court of Georgia.

Decided, January 23, 2017

Michael W. Tarleton, Alex G. Smith, for appellant.

Jacquelyn L. Johnson, Dist. Atty., Andrew J. Ekonomou, Asst. Dist. Atty., Samuel S. Olens, Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., Paula K. Smith, Sr. Asst. Atty. Gen., Vanessa T. Meyerhoefer, Asst. Atty. Gen., for appellee.

Blackwell, Justice.

Amos Southall was tried by a Camden County jury and convicted of murder and another crime in connection with the killing of Michelle Hainley. Southall appeals, contending that he was denied due process when the prosecution failed to disclose evidence that a material witness hoped to benefit from his testimony against Southall. Upon our review of the record and briefs, we see no error, and we affirm.¹

1. "Although no party to this appeal disputes our jurisdiction, it is the duty of this Court to inquire into its jurisdiction in any case in which there may be a doubt about the existence of such jurisdiction." State of Ga. v. Intl. Keystone Knights of the Ku Klux Klan , 299 Ga. 392, 396 (2), 788 S.E.2d 455 (2016) (citations and punctuation omitted).

As set out in footnote 1, supra, Southall is deemed to have filed his motion for new trial on February 4, 2013, the date on which it was stamped and certified by the trial court clerk as filed. See Pirkle v. Quiktrip Corp. , 325 Ga.App. 597, 598 (1) (b), 754 S.E.2d 387 (2014) ("a certificate of the clerk, entered upon the paper at the time it is filed, is the best evidence of such filing"). The judgment of conviction and sentence was signed by the judge and dated the same day, but it was not stamped and certified by the clerk until February 5, 2013, making that the date that the judgment was entered. See Lipscomb v. State , 194 Ga.App. 657 (1), 391 S.E.2d 773 (1990). See also Titelman v. Stedman , 277 Ga. 460, 461, 591 S.E.2d 774 (2003) (judgment has not been entered and is not effective for any purpose until it has been both signed by the judge and filed with the clerk). Although the clerk's index to the record erroneously shows that both the motion for new trial and the sentence were filed on February 6, 2013, we have not found any evidence in the record that the motion for new trial was filed on a date other than February 4, 2013, or that the judgment of conviction and sentence was entered on a date other than February 5, 2013. See Minnich v. First Nat. Bank , 154 Ga.App. 439, 268 S.E.2d 688 (1980). Because Southall's motion for new trial was filed before entry of the judgment on the verdict, it was premature, and, under our decision in Harrison v. Harrison , 229 Ga. 692 (1), 194 S.E.2d 87 (1972) (citation omitted), it was "invalid" for that reason. See also Tremble v. Tremble , 288 Ga. 666, 668 (1), 706 S.E.2d 453 (2011) ; Moore v. Moore , 229 Ga. 600, 601 (1), 193 S.E.2d 608 (1972), overruled on other grounds, 259 Ga. 72, 377 S.E.2d 676 (1989) ; Lipscomb , 194 Ga.App. at 657 (1), 391 S.E.2d 773 ("the motion for new trial was rendered premature and invalid by the delayed filing of the judgment"). This Court also said in Harrison that "[n]o amendment could be filed to such [a] void motion." 229 Ga. at 692 (1), 194 S.E.2d 87 (adding that, "[i]f the amendment to the motion should be considered as a motion for new trial, it was filed long after the time allowed for filing the motion"). See also Tremble , 288 Ga. at 668 (1), 706 S.E.2d 453.

Nevertheless, it is settled that, even if a motion for new trial is premature, "this prematurity will not serve to deprive the appellate court of jurisdiction to review the merits of the appeal in the face of a timely notice of appeal from the order finally disposing of the motion." Gomez – Oliva v. State , 312 Ga.App. 105, 106 (1), 717 S.E.2d 689 (2011) (citations and punctuation omitted). See also Lipscomb , 194 Ga.App. at 657 (1), 391 S.E.2d 773. Indeed, even though the premature motion for new trial in Harrison was considered "void," this Court decided that "the appeal was filed within 30 days after the entry of the order finally disposing of the motion, and the appeal was timely filed under [OCGA § 5–6–38 (a) ]." Harrison , 229 Ga. at 692 (1), 194 S.E.2d 87. Under that authority, Southall's "appeal is properly before this Court and will be considered on its merits." Gomez – Oliva , 312 Ga.App. at 107 (1), 717 S.E.2d 689 (citations omitted).

In Harrison , however, this Court further held as follows: "Error is enumerated on the denial of the motion for new trial. Since the motion was void, there was no error in denying it." 229 Ga. at 692 (2), 194 S.E.2d 87. The Court of Appeals reasonably has understood this holding to mean that an appellate court is required to automatically affirm as to claims of error that are premised on and directed only to a trial court's denial of a prematurely filed motion for new trial. See Gomez – Oliva , 312 Ga.App. at 107 (1), n. 4, 717 S.E.2d 689 ; Dae , 295 Ga.App. 818, 819 (1), 673 S.E.2d 306 (2009) ; Lipscomb , 194 Ga.App. at 657 (1), 391 S.E.2d 773 ; Hill , 187 Ga.App. 413, 415 (2), 370 S.E.2d 520 (1988) ; Joiner , 160 Ga.App. 343, 287 S.E.2d 327 (1981). If Harrison and its progeny were applied here, then Southall's claim of error regarding the prosecution's alleged failure to disclose evidence—regardless of whether that claim would have merit had the motion for new trial been timely filed—would not require reversal on appeal because the claim was raised only in the premature motion for new trial.²

Upon closer examination of this issue, however, we have determined that Division 2 of Harrison was incorrectly decided. The timing of a motion for new trial is governed by OCGA § 5–5–40 (a) : "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."³ The word "within," when used with reference to time, is generally a word of limitation that means "not beyond" or "not later than"—fixing the end, but not the beginning, of a period. See Hodges v. South Ga. Natural Gas Co. , 111 Ga.App. 180, 181 (2), 141 S.E.2d 182 (1965) (statute allowing an appeal "within 10 days" is concerned with "a time after which an appeal may not be filed, with no regard to the time when filing is premature" (emphasis in original)); Young v. Waldrop , 111 Mont. 359, 109 P.2d 59, 60–61 (1941) (collecting cases holding "that when time is spoken of, any act is ‘within’ the time named that does not extend beyond it"); Bellion v. Durand , 39 Utah 532, 117 P. 798, 799 (1911) (also collecting cases and holding that statutory requirement that motion for new trial be made "within ten days after the entry of judgment" fixed only the limit beyond which the motion may not be made, and did not fix the first point of time at which it may be made); 86 CJS Time § 21. Consequently, we properly treat a premature notice of appeal—which "shall be filed within 30 days after" entry of the appealable judgment or the order disposing of a motion for new trial, OCGA § 5–6–38 (a) —as effectively filed, vesting jurisdiction in the appellate court, upon entry of the judgment or an order denying a motion for new trial. See Hall v. State , 282 Ga. 294, 295 (1), 647 S.E.2d 585 (2007) ; Gillen v. Bostick , 234 Ga. 308, 310–311 (1), 215 S.E.2d 676 (1975). See also Guyton v. State , 281 Ga. 789, 795 (10) (f), 642 S.E.2d 67 (2007) (defendant not prejudiced when his lawyer prematurely filed a motion for sentence review that was required to be made "within 30 days" under former OCGA § 17–10–6 (a) (repealed in 2007)).

This Court's reasoning in Gillen applies equally to premature motions for new trial. Not only is the wording of OCGA § 5–5–40 (a) very similar in relevant part to that of OCGA § 5–6–38 (a), but treating a premature motion for new trial (like a premature notice of appeal) as effectively filed upon entry of judgment prevents the loss of valuable rights when the validity of the motion "is challenged not because something was done too late, but rather because it was done too soon." Gillen , 234 Ga. at 310 (1), 215 S.E.2d 676. See also Livingston v. State , 221 Ga.App. 563, 566 (1), 472 S.E.2d 317 (1996) (a whole-court case cited in Hall ) ("There is a vast difference between a notice which is filed beyond the time allowed by law, and a notice which is filed before it must be." (Emphasis in original)). Otherwise, a defendant like Southall, for example, would lose the right to prove to the trial court and the appellate court that the State unconstitutionally withheld certain material evidence during trial, other defendants may lose the right to prove a claim of ineffective assistance of counsel, and any party could lose the right to raise an issue that is required to be addressed after trial. See OCGA § 5–6–36 (a) ("where matters complained of arise or are discovered subsequent to verdict or judgment which otherwise would not appear in the record, such as newly discovered evidence, and in other like instances, a motion for new trial or other available procedure shall be filed and together with all proceedings thereon shall become a part of the record on appeal"). At the same time, the State or other prevailing party is not prejudiced or misled as a result of a premature motion for new trial so long as the motion contains sufficient information about the judgment from which it seeks relief, just as is required for a prematurely filed notice of appeal. See Gillen , 234 Ga. at 311 (1), 215 S.E.2d 676 ; Livingston , 221 Ga.App. at 565 (1), 472 S.E.2d 317 ("The only problem is that the appellant [or movant] is more prompt than the court, and the [judgment] is entered after the notice [or motion]."). See also OCGA §§ 5–5–42 (requiring that motions for new trial substantially comply with forms that identify the judgment involved), 5-6-37 (notice of appeal must include "a concise statement of the judgment, ruling, or...