Moon v. State

696 S.E.2d 55, 287 Ga. 304, 2010 Fulton County D. Rep. 1835, 2010 Ga. LEXIS 471

• Court: Supreme Court of Georgia
• Decided: June 7, 2010
• Docket: S10A0674
• Status: Published

Opinions

CARLEY, Presiding Justice.

In 2007, Jason Jerome Moon was indicted for murder and other offenses. When the case was called for trial on April 7, 2008, Moon orally moved for a change of venue on the ground of pre-trial publicity and introduced several newspaper articles into evidence. After voir dire, the trial court granted a change of venue, but stated that the State could file a motion to reconsider, and ordered the parties either to agree on a proper venue or to bring the matter back by motion for the court to determine a proper venue. The State subsequently appealed from a separate order granting a motion to suppress Moon’s pre-trial statements, which this Court affirmed in part and reversed in part. State v. Moon, 285 Ga. 55 (673 SE2d 255) (2009).

The State then filed a motion to reconsider the change of venue, which a different judge granted on October 1, 2009 on the ground that “there was never a written motion filed as is required by statute, and no evidentiary hearing was ever conducted.” The trial court also held that the State’s appeal acted as a supersedeas, and that the order changing venue was collateral and the State was not required to appeal it at the same time as the suppression order. The trial court certified its order for immediate review, and Moon appeals pursuant to our grant of his application for interlocutory appeal.

Moon contends that the trial court was not authorized to grant the motion for reconsideration, because it was not made until after expiration of the term of court in which the order changing venue was entered. In civil cases, “ ‘an interlocutory ruling does not pass from the control of the court at the end of the term if the cause remains pending.’ [Cits.]” Lott v. Arrington & Hollowell, 258 Ga. App. 51, 56 (3) (572 SE2d 664) (2002). This principle is required by the Civil Practice Act (CPA). OCGA § 9-11-6 (c). In criminal cases, however, the pre-CPA rule continues to apply, and a trial court’s inherent power to revoke interlocutory rulings still ceases with the end of the term. Pledger v. State, 193 Ga. App. 588, 589 (2) (a) (388 SE2d 425) (1989). Compare Rooney v. State, 217 Ga. App. 850, 852 (459 SE2d 601) (1995) (involving reconsideration of a bond order and distinguishing Pledger). Indeed, this is the general common law rule which applied in federal courts before terms of court were abolished therein. United States v. Breit, 754 F2d 526, 530 (4th Cir. 1985).

Contrary to the trial court’s order, any supersedeas during the State’s appeal from the suppression order did not affect the time for filing a motion for reconsideration. Where the State files an immediate, direct appeal as of right from a trial court’s grant of a motion to suppress evidence illegally seized, the filing of the notice of appeal generally acts as a supersedeas. State v. Vansant, 208 Ga. App. 772, 776 (2) (431 SE2d 708) (1993), aff'd in relevant part, Vansant v. State, 264 Ga. 319, 321 (3) (443 SE2d 474) (1994). However, this is an application of the general rule in OCGA § 5-6-45. State v. Vansant, supra. Under that statute, the notice of appeal in criminal cases “shall serve as supersedeas in all cases where a sentence of death has been imposed or where the defendant is admitted to bail....” OCGA § 5-6-45 (a). As neither condition was met in this case, the notice of appeal filed by the State did not act as a supersedeas and, therefore, did not prevent the trial court from hearing a timely motion for reconsideration. Moreover, even if the notice of appeal did serve as supersedeas, it still did not preclude the simultaneous hearing of a timely motion for reconsideration in the trial court, as the order to be reconsidered would not have involved the execution of a sentence and would not have directly or indirectly affected the issue on appeal. Roberts v. State, 279 Ga. App. 434, 437 (1) (631 SE2d 480) (2006), overruled on other grounds, DeSouza v. State, 285 Ga. App. 201, 202, fn. 2 (645 SE2d 684) (2007). “Filing a notice of appeal may deprive a court of its power to execute the sentence but it does not supersede every other activity of a trial court.” Strickland v. State, 258 Ga. 764, 766 (1) (373 SE2d 736) (1988).

Therefore, the State could have filed the motion for reconsideration during the same term in which the order changing venue was entered. Because the State failed to do so, the trial court was not authorized to vacate that order. Pledger v. State, supra. See also Harris v. State, 278 Ga. 280, 282, fn. 3 (600 SE2d 592) (2004); Donnelly v. Stynchcombe, 246 Ga. 118 (269 SE2d 10) (1980). Accordingly, the trial court’s order granting the motion for reconsideration is a nullity and must be reversed, and we direct the trial court to reinstate its order changing venue. Chishti v. State, 288 Ga. App. 230, 231 (653 SE2d 830) (2007). Remaining enumerations of error are moot. Chishti v. State, supra at 231, fn. 2.

Judgment reversed and case remanded with direction.

All the Justices concur.