Ding Dong! the Count Is Dead, or Is It?: Criminal Defendants May Not Directly Appeal Convictions if Unresolved Counts Are on the Dead Docket
| Publication year | 2022 |
Ding Dong! The Count is Dead, or Is It?: Criminal Defendants May Not Directly Appeal Convictions if Unresolved Counts are on the Dead Docket
Lilly B. Nickels
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A defendant is indicted on two criminal counts, is found guilty on one of those counts, and is sentenced to time in prison. However, the jury could not come to a decision on the other count, so the trial court judge places the count on the court's dead docket where the count could remain for an indefinite period of time, deeming the defendant's case pending in the trial court. Due to the defendant's case being classified as pending, the defendant does not have the right to a direct appeal. The defendant must helplessly serve prison time without any idea as to when the count will come off the dead docket1 or when the defendant will be able to appeal the conviction and sentence. This outcome is a product of the General Assembly's language in section 5-6-34(a)(1) of the Official Code of Georgia
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Annotated.2 After a defendant attempted to appeal his sentence while one of his criminal counts was on the dead docket and was subsequently denied, the Georgia Supreme Court set out to analyze and clarify the meaning of O.C.G.A. § 5-6-34(a)(1) in Seals v. State.3
When the defendant in Seals was found guilty on one count of his two-count indictment while the other count was placed on the dead docket, he directly appealed his conviction and sentence.4 The Georgia Court of Appeals denied his appeal because the dead-docketed count caused the defendant's entire case to remain pending in the lower court. After granting a writ of certiorari, the Georgia Supreme Court reviewed the appellate court's dismissal and subsequently upheld the dismissal after it interpreted the final judgment rule set out in O.C.G.A. § 5-6-34(a)(1) and held that a dead-docketed count was undecided and left the entire case pending in the lower court.5
The supreme court's analysis of the final judgment rule in O.C.G.A. § 5-6-34(a)(1) and the rule's treatment of dead-docketed counts provides clarity as to when a defendant can directly appeal their conviction, as well as a defendant's alternative options when a direct appeal is not available.
Demarquis Seals was indicted by a grand jury in June of 2017 on one count of rape and one count of child molestation.6 In October of 2018, Seals was tried before a jury on both counts, and he was found guilty of child molestation. However, the jury was unable to reach a verdict on the rape count, so the Superior Court of Douglas County declared a mistrial as to that count. The trial court sentenced Seals to twenty years in prison on the count of child molestation and noted that the count of rape was to be re-tried due to the declaration of a mistrial. Shortly after, the trial court placed the count of rape on the "dead docket."7
On the day of his sentencing, Seals filed a motion for a new trial, but in August of 2019, the trial court denied the motion.8 Seals filed a notice of appeal to the Georgia Court of Appeals, and the court later dismissed the appeal. The appellate court determined that since Seals had a dead-docketed count, his case was still pending in the trial court under
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O.C.G.A. § 5-6-34(a)(1), and therefore, Seals was required to follow the procedures for an interlocutory appeal under O.C.G.A. § 5-6-34(b)9 as to the child molestation conviction and sentence.10
The Georgia Supreme Court granted certiorari to review whether the court of appeals erred in dismissing Seals's appeal.11 Since the trial court's ruling did not constitute a final judgment under O.C.G.A. § 5-6-34(a)(1), and Seals did not follow the required procedures to seek an interlocutory appeal under O.C.G.A. § 5-6-34(b), the supreme court affirmed the appellate court's dismissal of Seals's appeal.12
A. Defendant's Right to Appeal Under O.C.G.A. § 5-6-34(a)(1)
Immediate appeals may be taken from final judgments, which O.C.G.A. § 5-6-34(a)(1) describes as "where the case is no longer pending in the court below[.]"13 The concept of this statute is longstanding in statutory law. Georgia Code of 1868, section 4191,14 the predecessor to O.C.G.A. § 5-6-34(a)(1), stated:
No cause shall be carried to the Supreme Court upon any bill of exceptions, so long as the same is pending in the Court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause.15
Twenty years after the enactment of section 4191, the Georgia Supreme Court interpreted its meaning in Zorn v. Lamar.16 The court held that the statute meant "as long as a defendant remains in the court below or other issues remain untried there, the case is pending there, and
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no final judgment has been had[.]"17 In 1965, the language of section 4191 was replaced by the enactment of the Appellate Practice Act.18 Although the language of the current O.C.G.A. § 5-6-34(a)(1) has evolved throughout the years, no decision indicates that the meaning of the statute has been materially changed regarding the embodiment of a final judgment.19
1. Interpreting Statutes
The issue in Seals is one of statutory construction, so it was necessary for the court to carefully and accurately interpret O.C.G.A. § 5-6-34(a)(1). When the Georgia Supreme Court was interpreting a statute in Deal v. Coleman,20 the court noted that "[w]hen we consider the meaning of a statute, 'we must presume that the General Assembly meant what it said and said what it meant.'"21 The court then said that statutory text should be given its "'plain and ordinary meaning[]'"22 and read in its "most natural and reasonable way, as an ordinary speaker of the English language would."23 In order to give a statute its ordinary public meaning, courts must read the words of the statute in context rather than in isolation, which includes the "structure and history of the text . . . [and] statutory and decisional law that forms the legal background of the written text."24
The court applied these standards when answering the issue in Seals. First, it had to determine whether a "case" that consists of multiple counts is still "pending" when one or more of the counts remains unresolved.
2. Ordinary Public Meaning of "Case" and "Pending"
The ordinary public meaning of the word "case," when used in a legal capacity, is a "legal action or suit[.]"25 When courts refer to a case, it is generally thought to encompass all charges against a defendant.
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Similarly, "pending," when used generally, means "not decided, determined, or established."26 This term is widely used throughout legal proceedings when a case or individual count is unresolved. Applying these terms to a case that includes multiple counts, it follows that if one of the counts in the case is pending, the case is also pending, thus the judgment is not final.
B. Georgia Supreme Court's Prior Decisions Regarding Final Judgments
The Georgia Supreme Court has issued several decisions regarding the final judgment rule embodied in O.C.G.A. § 5-6-34(a)(1). In Keller v. State,27 the Cobb County Superior Court failed to enter a written conviction and sentence on the last count of Gerald Keller's multi-count indictment after the jury announced the verdict.28 At this time, Keller's case was "not ripe for appeal . . . even though the trial court did enter a written judgment of conviction and sentence on the other counts of the indictment."29 Once the trial court entered a written sentence on the last count of the indictment, Keller filed a timely appeal to the Georgia Court of Appeals. This appeal was subsequently dismissed. A writ of certiorari was then granted by the Georgia Supreme Court to determine whether the dismissal of Keller's appeal by the court of appeals was erroneous. The supreme court held that "when multiple counts of an indictment are tried together and the trial court does not enter a written sentence on one or more of the counts, the case is still pending in the trial court and is not a final judgment under O.C.G.A. § 5-6-34(a)(1)."30 Thus, since Keller filed a timely appeal after the trial court entered a written judgment on the last count, the supreme court held that the court of appeals erred in dismissing the appeal.31
Similar to Keller, the Georgia Supreme Court in State v. Outen,32 interpreted O.C.G.A. § 5-7-2,33 which sets out the state's required procedures for appealing when no final judgment has been entered.34 In
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that case, David Outen filed a special demurrer35 on count one of the indictment which was subsequently granted by the Clarke Superior Court, and the state appealed.36 The Georgia Court of Appeals affirmed the trial court's grant of a special demurrer and filed a petition for a writ of certiorari to the supreme court. After granting the writ of certiorari, the supreme court held that "[t]he trial court's order dismissing [c]ount [one] of the indictment [was] not a final order[.] Count [two] remain[ed] in the trial court. Accordingly, by the plain terms of O.C.G.A. § 5-7-2, a certificate of immediate review was required."37 Since the state did not follow the required procedures for a certificate of immediate review laid out in O.C.G.A. § 5-7-2,38 the court of appeals did not have appellate jurisdiction to affirm the trial court's dismissal.39
Although Keller and Outen concern different circumstances than those in Seals and do not explicitly reference the dead docket, these cases show that if one or more counts of a multi-count indictment are pending in the court below, there is not a final judgment, and none of the counts can be appealed.40
1. The Final Judgment Rule as Applied in Civil Cases
The final judgment rule in O.C.G.A. §...
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