Felix v. State

523 S.E.2d 1, 271 Ga. 534, 99 Fulton County D. Rep. 3793, 1999 Ga. LEXIS 786
CourtSupreme Court of Georgia
DecidedOctober 18, 1999
DocketS99G0120
StatusPublished
Cited by199 cases

This text of 523 S.E.2d 1 (Felix v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Felix v. State, 523 S.E.2d 1, 271 Ga. 534, 99 Fulton County D. Rep. 3793, 1999 Ga. LEXIS 786 (Ga. 1999).

Opinion

523 S.E.2d 1 (1999)
271 Ga. 534

FELIX et al.
v.
The STATE.

No. S99G0120.

Supreme Court of Georgia.

October 18, 1999.

*2 Ellis C. Smith, James C. Thornton, LaGrange, for appellants.

Peter J. Skandalakis, District Attorney, Monique L. Fouque, Todd A. Orston, Assistant District Attorneys, for appellee.

BENHAM, Chief Justice.

While awaiting trial on an indictment charging them with possession of cocaine, appellants Gladys Felix and Leonard Lee filed a motion to suppress the contraband found by law enforcement officers executing a search warrant in the room in which appellants were sleeping. The trial court denied the motion, and appellants were convicted. On appeal to the Court of Appeals of Georgia, appellants asserted in their enumeration of errors that "[t]he trial court erred in denying Appellants' motion to suppress." In their brief filed with the appellate court, appellants set forth and argued separately four reasons why the motion to suppress should have been granted: because the search warrant allegedly suffered from three defects (the address was incorrect, the warrant appeared to have been issued by a court that did not exist, and the warrant was not supported by probable cause) and because the officers allegedly had executed the warrant illegally by using force to enter the occupied premises. See OCGA § 17-5-27. The Court of Appeals found appellants' multifarious attack on the trial court's ruling to be a "compound enumeration" in violation of § 5-6-40, and issued an opinion which addressed only the merits of the contention questioning the sufficiency of the search warrant's description of the premises to be searched. Felix v. State, 234 Ga.App. 509(1), 507 S.E.2d 172 (1998). We granted a writ of certiorari to examine the propriety of the Court of Appeals' invocation of § 5-6-40, which requires an appellant to file with the clerk of the appellate court "an enumeration of the errors which shall set out separately each error relied upon."

OCGA § 5-6-40 is a part of the Appellate Practice Act of 1965 ("APA"), described by one commentator as "probably the most substantial change in appellate procedure since creation of the Supreme Court." E. Freeman Leverett, "The Appellate Procedure Act of 1965," 1 Ga. State Bar J. 451 *3 (1965). The Act was passed "to simplify the procedure for bringing a case to the appellate court" (Taylor v. R.O.A. Motors, 114 Ga.App. 671(3), 152 S.E.2d 631 (1966)), and to secure "speedy and uniform justice in a uniform and well-ordered manner; ... not ... to set traps and pitfalls by way of technicalities for unwary litigants." Chambliss v. Hall, 113 Ga.App. 96, 98, 147 S.E.2d 334 (1966). A principal objective of the Act was to "get away from the harsh practice of treating every minor departure from prescribed procedures as a jurisdictional defect on the same level as a violation of the Bill of Rights." E. Freeman Leverett, "1966 Amendments to the Appellate Procedure Act of 1965," 2 Ga. State Bar J., 433, 443 (1966). To this end, the General Assembly expressly abolished bills of exceptions, exceptions pendente lite, assignments of error and all rules relating thereto (OCGA § 5-6-49), and mandated that the Act "be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein, except as may be specifically referred to in [the Act]." OCGA § 5-6-30.

In the last decade, the composition of the enumeration of the errors has become an important feature of the Court of Appeals' review of a lower court's judgment. OCGA § 5-6-40's requirement that the appellant and cross-appellant file "an enumeration of the errors which shall set out separately each error relied upon" has been a focal point of appellate attention. Concerned that "lumping more than one assertion of error within a single enumeration creates a fair risk that ambiguity, misdirection, or confusion as to the error asserted will occur, thereby giving rise to an increased likelihood of generating inadvertent appellate error[,]" the Court of Appeals announced that, in order to protect its judgments on appellate review, it would exercise its discretion whether to review any of the several assertions of error when faced with an enumerated error it found to assert more than one error. West v. Nodvin, 196 Ga.App. 825(4)(c), 397 S.E.2d 567 (1990). The assertions of error not addressed by the appellate court would be treated as abandoned by the appellant. Id. Since then, in over seventy published opinions, the Court of Appeals has informed appellate attorneys that at least one of the errors enumerated by appellate counsel violates OCGA § 5-6-40 because it includes more than one error. In several of these cases, the Court of Appeals has exercised its discretion and reviewed none of the assertions contained in what it found to be a multifarious enumeration of error. See Bean v. State, 239 Ga.App. 106(1), 521 S.E.2d 19 (1999); Carl v. State, 234 Ga.App. 61(3), 506 S.E.2d 207 (1998); Stubbs v. Harmon, 226 Ga.App. 631(2), 487 S.E.2d 91 (1997);[1]Duggan v. State, 225 Ga.App. 291(7), 483 S.E.2d 373 (1997); Arrington v. State, 224 Ga.App. 676(1), 482 S.E.2d 400 (1997); White v. State, 221 Ga. App. 860(1), 473 S.E.2d 539 (1996);[2]HAP Farms v. Heard, 209 Ga.App. 684(1)(c), 434 S.E.2d 118 (1993); Wilson v. Southern R. Co., 208 Ga.App. 598(6), 431 S.E.2d 383 (1993). In other cases, the Court of Appeals has used a variety of standards to exercise its discretion to review all assertions of errors contained in the questioned enumerated error: if the court is unable to "address any one of these errors without touching upon the others ..." (Versico v. Engineered Fabrics Corp., 238 Ga.App. 837(2), 520 S.E.2d 505 (1999)); if each of the errors is "easily distinguished and separated in [appellant's] brief ..." (Wingfield v. State, 229 Ga.App. 75(4), 493 S.E.2d 235 (1997)); if the issues are "sufficiently related to one another and were jointly raised and ruled on below ..." (In the Interest of B.C.P., 229 Ga.App. 111(3), 493 S.E.2d 258 (1997)); if a party would otherwise "suffer for what his counsel neglected to do[,]" (Griffin v. State, 228 Ga. *4 App. 200, 491 S.E.2d 437

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Bluebook (online)
523 S.E.2d 1, 271 Ga. 534, 99 Fulton County D. Rep. 3793, 1999 Ga. LEXIS 786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/felix-v-state-ga-1999.