Styles v. State

• Decision Date: 13 July 2000
• Docket Number: No. A00A0505.,A00A0505.
• Citation: 245 Ga. App. 90,537 S.E.2d 377
• Parties: STYLES v. The STATE.
• Court: Georgia Court of Appeals

537 S.E.2d 377

245 Ga. App. 90

STYLES v. The STATE.

No. A00A0505.

Court of Appeals of Georgia.

July 13, 2000.

Jason T. Shwiller, for appellant.

James E. Osborne, District Attorney, Theo M. Sereebutra, Assistant District Attorney, for appellee.

SMITH, Presiding Judge.

We granted this discretionary application to resolve conflicting lines of opinion regarding this court's jurisdiction over pending appeals before issuance of a remittitur. The Supreme Court of this state has expressly held that a superior court is without authority to alter a judgment while an appeal of that judgment is pending. Chambers v. State, 262 Ga. 200, 415 S.E.2d 643 (1992). This court has applied that rule even when the pending appeal is dismissed for lack of jurisdiction. We therefore dismiss this appeal and overrule the decisions of Gillis v. Goodgame, 199 Ga.App. 413, 404 S.E.2d 815 (1991), rev'd on other grounds, 262 Ga. 117, 414 S.E.2d 197 (1992), and Kent v. Brown, 238 Ga.App. 607, 518 S.E.2d 737 (1999), holding to the contrary.

On June 30, 1999, the superior court revoked Curtis Alton Styles's probation. Styles filed a notice of appeal on July 28, 1999, and the direct appeal was docketed as Case No. A99A2476. An order dismissing Case No. A99A2476 for failure to comply with the discretionary appeal procedures was filed on August 13, 1999, but the remittitur was not issued by this court until September 3, 1999; it was filed in the superior court clerk's office on September 7, 1999.

Under ordinary circumstances, a trial court does not have "jurisdiction to take any action in a case prior to receiving the remittitur from the appellate court." Chambers, supra. But on August 20 and 24, 1999, before the remittitur issued, the superior court entered orders vacating and re-entering the probation revocation order. As of those dates, the direct appeal was still pending and the superior court was without authority to alter the judgment on appeal. The superior court orders of August 20 and 24, 1999 therefore are null and void. Id. This is true even if the first appeal ultimately is dismissed for lack of jurisdiction. Anaya v. Brooks Auto Parts, 208 Ga.App. 491, 493(1), 430 S.E.2d 825 (1993); see also Bryan v. Brown Childs Realty Co., 236 Ga.App. 739, 742(2), 513 S.E.2d 271 (1999); Morris v. Morris, 226 Ga.App. 799(2), 487 S.E.2d 528 (1997); MTW Investment Co. v. Alcovy Properties, 223 Ga.App. 230, 231, 477 S.E.2d 395 (1996).

A different result would be reached under the holdings of Gillis v. Goodgame, supra at 414(1), 404 S.E.2d 815, and Kent v. Brown, supra at 613-614(3), 518 S.E.2d 737. These cases hold that when an appeal is dismissed due to this court's lack of jurisdiction, the trial court is deemed to have retained jurisdiction during the pendency of the appeal and could properly have proceeded with the case, including altering or amending the judgment or ruling sought to be appealed. The effect of these cases is to remove from this court the responsibility for determining our own jurisdiction. Williams v. Natalie Townhouses &c., 182 Ga.App. 815, 817, 357 S.E.2d 156 (1987). Rather than abdicate our authority to determine our jurisdiction over pending appeals, we overrule and will no longer follow Gillis or Kent with respect to this issue.

Applications for discretionary appeal must be filed within 30 days of entry of the order complained of. OCGA § 5-6-35(d). Styles's application was not filed within 30 days of the entry of the June 30, 1999 order revoking probation, which remains in effect due to the void nature of the order purporting to vacate it. This court lacks jurisdiction to consider an untimely application for discretionary appeal. Rosenstein v. Jenkins, 166 Ga.App. 385, 304 S.E.2d 740 (1983). This application therefore is dismissed.

Appeal dismissed.

JOHNSON, C.J., POPE, P.J., ANDREWS, P.J., RUFFIN, BARNES, MILLER and PHIPPS, JJ., concur.

BLACKBURN, P.J., ELDRIDGE, ELLINGTON, and MIKELL, JJ., concur specially.

BLACKBURN, Presiding Judge, concurring specially.

I concur fully with the judgment of the majority and the overruling of Gillis v. Goodgame¹ and Kent v. Brown.² I cannot agree, however, with the majority's analysis of the law concerning the jurisdiction of the trial court to act while a case is on appeal and, therefore concur in the judgment only.

The statement that "[u]nder ordinary circumstances, a trial court does not have `jurisdiction to take any action in a case prior to receiving the remittitur from the appellate court'" is misleading, because such loss of jurisdiction is limited to only those proceedings which either require a ruling on the matters on appeal or directly or indirectly affect such matters. The use of the term "ordinary circumstances" assumes that acts of the trial court during appeal would affect the issue pending on appeal and adds nothing to the analysis. While this generalization may or may not be true, it is of no assistance to the Bar in determining when the trial court may or may not act while certain rulings or judgments are on appeal. Providing more specific guidance to the Bar as to the application of the law should assist lawyers in advising their clients and trial judges in making their rulings.

The trial court is free to act while a case is on appeal except under those limited circumstances described herein. Such a limited circumstance is present in the case relied upon by the majority, Chambers v. State.³ There, our Supreme Court held that a trial and conviction of a defendant which take place during the pendency of an appeal of a motion to suppress are null and void. This has to be the case since, in allowing the matter to proceed through the entry of a verdict, the trial court necessarily had to take some action regarding the evidence which was the subject of the motion to suppress which was on appeal.

See also Griffin v. State,⁴ where our Supreme Court quashed a murder indictment in Thomas County, where an appeal was pending from the denial of a double jeopardy claim upon the defendant's reindictment in McIntosh County, following a mistrial of the first indictment based upon the same incident. Griffin, supra, also involved action on the very issue that was the subject of a pending appeal, and there was therefore no jurisdiction in the trial under the facts of that case.

It is the law that a trial court may not alter a judgment or order while an appeal as to the validity of that particular judgment or order is still pending before the appellate court. Neither may a trial court initiate proceedings which, one way or another, require a ruling on the exact matter being appealed. See generally Cohran v. Carlin;⁵ Chambers v. State, supra; Griffin v. State, supra.

It is not the case, however, that a trial court's hands are tied as to other matters not affecting those issues on appeal, during the pendency of such appeal. In Fairburn Banking Co. v. Gafford,⁶ our Supreme Court pointed out that

while a trial court is without jurisdiction to modify or enforce a judgment during the period of supersedeas, it has jurisdiction to consider other matters in the case and even to conduct a trial, subject to the peril that a decision which conflicts with that of the appellate court will be made nugatory.

A trial court does retain jurisdiction, pending appeal, of matters which do not require it to take action which affects an order or judgment under the consideration of a higher court. Our appellate courts have established this state of the law, by holding that while an appeal is pending, a trial court retains jurisdiction to: add counterclaims not directly related to the judgment on appeal, Trust Co. Bank v. C & S Trust Co.;⁷ rule on motions for protective orders, Craft's Ocean Court v. Coast House Ltd.;⁸ and rule on motions for a continuance of a hearing, id.

The legislature has contributed to this state of the law through the enactment of statutes which provide for jurisdiction in the trial court during the pendency of an appeal. A trial court may perform certain functions even while an appeal is pending in order to prevent a failure or delay of justice. OCGA § 9-11-27(b) provides:

If an appeal has been taken from a judgment of a trial court or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the trial court.... If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken.

In essence, this statutory provision embodies the maxim that justice should not be delayed and that the procession of a given case to its just disposition should not be impeded by the filing of an appeal except as required by law, which requirements have been previously addressed.

OCGA § 15-11-64 specifically provides that orders of the juvenile court are not superseded by the filing of an appeal. The juvenile court retains discretion to act in connection therewith during the pendency of the appeal and until a ruling by the higher court. See also Rocha v. State.⁹ In Rocha, supra, we considered the effect of a pending appeal of the grant of a motion to transfer a juvenile court case to superior court on an indictment issued during such pendency. In Rocha, the defendant was indicted by the grand jury, but not tried, while his appeal of the transfer ruling was pending. The defendant argued that, due to the pending appeal, the superior court had no jurisdiction to enter the indictment.

We rejected the defendant's argument in that case, based on the statutory mandate that "no [final judgments of a juvenile court judge, which would include a motion to transfer,] shall be superseded except in the...