Seals v. State

860 S.E.2d 419, 311 Ga. 739

• Court: Supreme Court of Georgia
• Decided: June 18, 2021
• Docket: S20G0931
• Status: Published

Opinion

311 Ga. 739 FINAL COPY

S20G0931. SEALS v. THE STATE.

PETERSON, Justice.

Defendants in criminal cases may take immediate appeals

from final judgments, which OCGA § 5-6-34 (a) (1) defines as when

“the case is no longer pending in the court below[.]” In applying this

familiar principle, we have often dismissed for lack of jurisdiction

appeals in criminal cases because verdicts have been rendered or

sentences have been imposed on less than all counts of an

indictment or accusation. This case presents the question of whether

the same rule applies when one or more counts have been “dead-

docketed.” It does; dead-docketing, while a common and

longstanding practice in Georgia courts, has almost no statutory

authority and none that would allow different treatment here. And

precedent from our Court of Appeals has for decades made clear that

when a count is dead-docketed, the case remains pending in the trial court. Accordingly, we hold that dead-docketing a count leaves that

count undecided and, thus, leaves the entire “case pending in the

court below.” Such a case cannot be appealed as a final judgment

under OCGA § 5-6-34 (a) (1); instead, it requires a certificate of

immediate review, which Demarquis Seals did not seek. We

therefore affirm the Court of Appeals’s dismissal of his appeal.

The relevant facts are not disputed. In June 2017, a grand jury

returned an indictment against Seals charging him with one count

of rape and one count of child molestation. He was tried before a jury

in October 2018. The jury found Seals guilty of child molestation but

could not reach a verdict on the rape count, prompting the trial court

to declare a mistrial as to that count. On the disposition sheet filed

on November 5, 2018, the trial court entered a 20-year sentence of

imprisonment on the child molestation count, and noted that the

rape count had been mistried and was to be “re-tried.” Less than a

month later, the trial court entered a separate order placing the rape

count on the dead docket.

2 Seals filed a motion for new trial on November 5, 2018, and

subsequently amended it.1 The trial court denied Seals’s motion in

August 2019, and Seals filed a timely notice of appeal to the Court

of Appeals. The Court of Appeals dismissed the appeal in February

2020, concluding that the dead-docketed rape count caused the case

to remain pending in the trial court and that Seals was therefore

required to follow the interlocutory appeal procedures to appeal his

conviction and sentence on the child molestation count. We granted

certiorari to consider whether the Court of Appeals correctly

dismissed Seals’s appeal.2

1 Although Seals’s motion was premature, it ripened once the trial court

entered a written sentence. See Southall v. State, 300 Ga. 462, 467 (1) (796 SE2d 261) (2017). 2 Seals filed a supplemental brief in which he attached an order from the

trial court filed in January 2021 purportedly granting the State’s motion to nolle pros the rape count. The trial court did not have jurisdiction to enter that order because the appeal was pending here. See Tolbert v. Toole, 296 Ga. 357, 360-361 (2) (767 SE2d 24) (2014) (filing of notice of appeal deprives trial court of jurisdiction until appeal is resolved and the trial court has received and filed the remittitur from the appellate court). Moreover, jurisdiction must be determined at the time of filing. See Plummer v. Plummer, 305 Ga. 23, 27 (2) (a) (823 SE2d 258) (2019). And appeals are to be decided based only on the record on appeal. See Meltzer v. C. Buck LeCraw & Co., 225 Ga. 91, 92 (1) (166 SE2d 88) (1969). At the time the notice of appeal was filed, and even at the time that the Court of Appeals dismissed the case for lack of jurisdiction, the trial court had not entered the nolle pros order, much less included that order in the appellate record.

3 1. This is a case of statutory construction.

This appeal turns on what it means for a “case” to become “no

longer pending in the court below.” In answering that question, we

apply the familiar principles by which we construe statutes. “When

we consider the meaning of a statute, we must presume that the

General Assembly meant what it said and said what it meant.” Deal

v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d 337) (2013)

(citation and punctuation omitted). That presumption means that

“we must afford the statutory text its plain and ordinary meaning,

we must view the statutory text in the context in which it appears,

and we must read the statutory text in its most natural and

reasonable way, as an ordinary speaker of the English language

would.” Id. (citations and punctuation omitted).

The ordinary public meaning of statutory text that matters is

the meaning the statutory text had at the time it was enacted. See

Fed. Deposit Ins. Corp. v. Loudermilk, 295 Ga. 579, 589-590 (2) &

n.8 (761 SE2d 332) (2014) (considering original public meaning of

statute); cf. Olevik v. State, 302 Ga. 228, 235 (2) (c) (i) (806 SE2d 505)

4 (2017) (“original public meaning . . . is simply shorthand for the

meaning the people understood a provision to have at the time” it

was enacted). Determining such meaning requires considering the

text in the context in which it was enacted: “As we have said many

times before when interpreting legal text, ‘we do not read words in

isolation, but rather in context.’” City of Guyton v. Barrow, 305 Ga.

799, 805 (3) (828 SE2d 366) (2019) (quoting Smith v. Ellis, 291 Ga.

566, 573 (3) (a) (731 SE2d 731) (2012)). “The primary determinant

of a text’s meaning is its context, which includes the structure and

history of the text and the broader context in which that text was

enacted, including statutory and decisional law that forms the legal

background of the written text.” City of Guyton, 305 Ga. at 805 (3)

(citing Undisclosed LLC v. State, 302 Ga. 418, 420 (2) (a) (807 SE2d

393) (2017); Olevik, 302 Ga. at 235-236 (2) (c) (i); and Deal 294 Ga.

at 172-173 (1) (a)).

In applying these principles to this case, we confront several

questions. First, is a “case” with multiple counts still “pending”

when some of those counts remain unresolved? As we explain below,

5 the answer generally is yes. Second, is there anything in Georgia

law that would call for a different conclusion when the unresolved

count is dead-docketed? As we explain below, both as a matter of the

few Georgia statutes that reference dead-docketing, and as a matter

of the legal context pre-dating the 1984 enactment of the language

of OCGA § 5-6-34 (a) (1), the answer is no.

2. A case with multiple counts is still pending when one of those counts remains undisposed.

(a)The original public meaning of OCGA § 5-6-34 (a) (1) leads us to conclude that a case is not final and is still pending below if one or more counts are unresolved.

The right of immediate review under OCGA § 5-6-34 (a) (1) has

roots dating back more than 150 years. An 1868 version of the

predecessor to OCGA § 5-6-34 (a) (1) provided as follows:

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.

Code of 1868, § 4191. This Court construed that provision as

meaning that “as long as a defendant remains in the court below or

6 other issues remain untried there, the case is pending there, and no

final judgment has been had[.]” Zorn v. Lamar, 71 Ga. 80, 82 (1883)

(emphasis added). Relying on this Court’s precedents, the Court of

Appeals concluded that the word “cause” as used in the statute,

referred “to the entire case, the entire suit or litigation, and the

entire question being litigated under the petition; and as long as any

portion of the ‘cause’ is pending in the court below, the ‘cause’ can

not be carried to an appellate court,” unless the judgment

complained of would have been the final disposition of the case.

Carhart v. Mackle, 22 Ga. App. 520, 522 (96 SE 591) (1918).

The language of this provision was materially the same for

almost 100 years until the Appellate Practice Act was enacted in

1965. See Ga. L. 1965, p. 18, § 1. The Appellate Practice Act changed

the language to say that there was a right to an immediate appeal

“[w]here the judgment is final ⸺ that is to say ⸺ where the cause is

no longer pending in the court below[.]” Id. Despite the rewording,

we concluded that the law regarding reviewable judgments did not

“materially change.” O’Kelley v. Evans, 223 Ga. 512, 513 (156 SE2d

7 450) (1967). This Court and the Court of Appeals continued to hold

that a judgment was not final if there were claims that remained

pending below. See, e.g., Gorrell v. Fowler, 247 Ga. 67, 67 (273 SE2d

852) (1981); Farmers Co-op. Ins. Co. v. Hicks, 227 Ga. 755, 755 (182

SE2d 895) (1971); Register v. Kandlbinder, 132 Ga. App. 435, 435

(208 SE2d 565) (1974); Spell v. State, 120 Ga. App. 398, 399 (170

SE2d 701) (1969).

In 1984, the language of what is now OCGA § 5-6-34 (a) (1) was

changed slightly, replacing the word “cause” with “case.” See Ga. L.

1984, p. 599, § 1. But no decision has suggested that this change

materially altered the statute’s meaning as to what constitutes a

final judgment. Rather, construing that current language, which

applies here, we have held that when a defendant is prosecuted on

a multiple-count indictment, the case is not final and appealable

until the trial court enters a written judgment on each count of the

indictment. See Keller v. State, 275 Ga. 680, 681 (571 SE2d 806)

(2002); see also State v. Riggs, 301 Ga. 63, 65 (1) (799 SE2d 770)

(2017) (“When a trial court fails to impose separate sentences for

8 each count of which a defendant was found guilty, it has not entered

a proper judgment.” (citing Keller)). Similarly, in construing former

OCGA § 5-7-2, which outlined the procedures the State must follow

to appeal when there is no final order or judgment, we concluded

that a trial court’s order dismissing one count of a two-count

indictment was not a final order where the other count was pending

below. See State v. Outen, 289 Ga. 579, 581 (714 SE2d 581) (2011)

(holding that the State’s appeal should have been dismissed because

it did not follow the interlocutory procedures provided by former

OCGA § 5-7-2).

Seals argues that Keller applies only when a trial court fails to

enter a disposition on a count for which the jury reached a verdict,

and argues that Keller does not apply because the jury in this case

did not reach a verdict on the rape count. But there is no principled

reason for that factual distinction to make a legal difference. Keller

and Outen demonstrate that when at least one count of a multi-

count indictment remains pending below, no count may be appealed

as a final judgment. This principle applies equally to civil cases. See,

9 e.g., Islamkhan v. Khan, 299 Ga. 548, 550 (1) (787 SE2d 731) (2016)

(divorce decree was interlocutory order, not a final judgment, when

order reserved issue of attorney fees that was expressly asked for in

pleadings); Keck v. Harris, 277 Ga. 667, 667 (1) (594 SE2d 367)

(2004) (trial court’s order denying constitutional challenge did not

constitute a final judgment under OCGA § 5-6-34 (a) (1) because a

claim remained pending below); see also Tyrones v. Tyrones, 300 Ga.

367, 369 n.2 (792 SE2d 398) (2016) (“[An order] constitutes a final

judgment within the meaning of OCGA § 5-6-34 (a) (1) where it

leaves no issues remaining to be resolved, constitutes the court’s

final ruling on the merits of the action, and leaves the parties with

no further recourse in the trial court.” (citation and punctuation

omitted)). Our precedent thus clearly provides that a case is pending

below when one or more counts of a multi-count complaint or

indictment have not been resolved.

This precedent is consistent with the ordinary public meanings

of “case” and “pending” as they relate to legal proceedings. The most

natural ordinary meaning of “case” is a single proceeding, regardless

10 of whether the proceeding involves one or multiple counts. See

Webster’s New World Dictionary of the American Language 219 (2d

College ed. 1980) (relevant definition of “case” is “a legal action or

suit”); see also Black’s Law Dictionary 215 (6th ed. 1990) (first

definition of “case” is “[a] general term for an action, cause, suit, or

controversy, at law or in equity”). Indeed, virtually every criminal

case that this Court and the Court of Appeals considers involves

multiple counts against the defendant. But in those instances, no

one refers to the underlying proceeding (or the appeal) as “cases.”

It’s simply a “case.” These same conventions generally are used in

the trial courts.

Similarly, when a count has not been resolved, we think of that

count as “pending.” See Webster’s New World Dictionary of the

American Language 1050 (2d College ed. 1980) (defining “pending”

as “not decided, determined, or established”); see also Black’s Law

Dictionary 1134 (6th ed. 1990) (providing set of definitions for

“pending” that includes: “Begun, but not yet completed; during;

before the conclusion of; prior to the completion of; unsettled;

11 undetermined; in the process of settlement or adjustment. Awaiting

an occurrence or conclusion of action, period of continuance or

indeterminacy. Thus, an action or suit is ‘pending’ from its inception

until the rendition of final judgment.”). And because a criminal case

often includes multiple counts, one would ordinarily not consider a

case to be resolved fully if one count is pending; instead, the entire

case would be treated as pending, even if some counts were resolved.

Under the ordinary meaning of OCGA § 5-6-34 (a) (1) and given

our established principles, there is but one case here: Seals was tried

under one indictment charging two counts. As we will next explain,

the State’s arguments that the mistried and dead-docketed count is

essentially now a different case are not persuasive.

(b) The authority cited by the parties does not inform the meaning of OCGA § 5-6-34 (a) (1).

Longstanding precedent provides that declaring a mistrial does

not finally dispose of a case. See Oliveros v. State, 118 Ga. 776, 779

(45 SE 596) (1903); see also Nickles v. State, 86 Ga. App. 284, 284 (1)

(71 SE2d 574) (1952) (citing Oliveros and Starnes v. State, 138 Ga.

12 341 (75 SE 104) (1912)). Despite this precedent, Seals and the State

argue that the mistrial in this case effectively severed the mistried

rape count from the child molestation count on which Seals was

found guilty. But their points are misplaced.

Citing a footnote in Keller, Seals argues that the situation here

is like the multiple trials of severed counts such that the conviction

on the child molestation count was separately appealable. See

Keller, 275 Ga. at 681 n.3 (noting case law holding that when a count

is severed from a multi-count indictment, and separate trials are

held on the severed counts, each conviction on the severed counts is

separately appealable when the sentence is entered on the severed

count). But this is not a situation in which there were multiple trials

held on severed counts. There was only one trial on one indictment.

For its part, the State relies on precedent from the United

States Supreme Court to argue that a single indictment involving

multiple counts is really multiple indictments that have been joined

together, such that the indictments are severed from each other

when there is a verdict and sentence entered on at least one count.

13 The State also cites several Georgia cases in which an appeal was

decided notwithstanding the fact that some of the counts in the

indictment remained pending below. But the State’s authority has

no precedential value for determining the meaning of OCGA § 5-6-

34 (a) (1) or its application here.

The State’s reliance on Pointer v. United States, 151 U.S. 396

(14 SCt 410, 38 LE 208) (1894), is misplaced because the relevant

portion of that case merely concerned whether the trial court erred

in denying a motion to quash the indictment where it charged two

different murders. See id. at 400. After noting the common law

preference for an indictment charging only a single count, the Court

concluded that joinder of different felonies in separate counts was

not “necessarily fatal to the indictment” and that a trial court’s

decision to permit that action was a matter of “prudence and

discretion.” Id. at 401-403. Nothing about Pointer’s discussion

regarding the joinder and severance of offenses is relevant to our

consideration here.

14 The State also relies on Selvester v. United States, 170 U.S. 262

(18 SCt 580, 42 LE 1029) (1898), to argue that a jury’s inability to

reach a verdict on every count of a multi-count indictment has no

effect on the counts that were decided. But Selvester does not touch

on the issue here. In Selvester, the defendant claimed the jury’s

verdict was a nullity where the jury found that he was guilty on

three counts of the indictment and could not agree on the fourth

count. See id. at 263. The defendant in that case asserted that

“where an indictment consists of several counts, repeated trials

must be had until there is an agreement either for acquittal or

conviction as to each and every count contained in the indictment.”

Id. at 264. The United States Supreme Court concluded that the

jury’s inability to reach a verdict on one count did not render the

verdict a nullity because “although distinct offen[s]es were charged

in separate counts in one indictment, they nevertheless retained

their separate character to such an extent that error or failure as to

one had no essential influence upon the other.” Id. at 268.

15 This conclusion has no bearing here, because this is not a case

about whether the jury must reach an agreement on all counts in

order for the verdict on the counts decided to be valid. The question

before us is whether there is a final judgment under OCGA § 5-6-34

(a) (1) when one or more counts of a multi-count indictment have

been mistried and dead-docketed. Selvester did not purport to

address, much less answer, this question. Nor could a decision of

that Court decide the meaning of a Georgia statute. See Riley v.

Kennedy, 553 U.S. 406, 425 (128 SCt 1970, 170 LE2d 837) (2008) (“A

State’s highest court is unquestionably the ultimate expositor of

state law.” (citation and punctuation omitted)).

Moreover, the State ignores the more relevant and persuasive

precedent from that Court regarding what constitutes a final

judgment. That precedent aligns with our construction of what

constitutes a final judgment under state law. See Collins v. Miller,

252 U.S. 364, 370 (40 SCt 347, 64 LE 616) (1920) (“To be appealable

the judgment must be not only final, but complete[,]” which requires

that the judgment be “final not only as to all the parties, but as to

16 the whole subject-matter and as to all the causes of action involved.”

(citations omitted)).

The State (like the dissent) also points to several cases from

this Court and the Court of Appeals that have considered the merits

of an appeal despite a count remaining pending below. But in none

of those cases was there any discussion of jurisdiction at all, much

less analysis and a holding on the issue. Decisions of this Court and

of the Court of Appeals “do not stand for points that were neither

raised by the parties nor actually decided in the resulting opinion,”

and “questions which merely lurk in the record, neither brought to

the attention of the court nor ruled upon, are not to be considered as

having been so decided as to constitute precedents.” Palmer v. State,

282 Ga. 466, 468 (651 SE2d 86) (2007) (citation and punctuation

omitted). Those cases provide no authority for the State’s position.

3. There is no legal authority for treating cases with dead- docketed counts differently.

Declaring a mistrial on the rape count meant the case was not

final under our precedent, and placing that count on the dead docket

17 did not change the status of the case. The parties generally refer to

the trial court’s discretion to dead docket cases, but no such

authority (which, whatever its origin, is not statutory) creates a

special category for which the general finality rule of OCGA § 5-6-

34 (a) (1) does not apply, because a dead-docketed count remains

untried, see Zorn, 71 Ga. at 82 (there is no final judgment where

“issues remain untried” in the court below), and remains to be

resolved, see Tyrones, 300 Ga. at 369 n.2 (an order constitutes a final

judgment when it leaves no issues remaining to be resolved).

(a)None of the few statutory references to dead-docketing

supports different treatment.

Placing cases on the dead docket is a procedural tool by which

“the prosecution is postponed indefinitely but may be reinstated any

time at the pleasure of the court.” Beam v. State, 265 Ga. 853, 855

(3) n.3 (463 SE2d 347) (1995) (citation and punctuation omitted).

This practice, while common, is mentioned only in passing in the

Georgia Code. And what scant statutory authority does exist on the

subject — three references — offers nothing to demonstrate that the

18 effect of dead-docketing a count results in a final judgment on that

count and thus on the case under OCGA § 5-6-34 (a) (1).

The first statute merely describes a superior court clerk’s duty

to maintain a criminal case management system that will reflect

“entries of cases which are ordered dead docketed.” OCGA § 15-6-61

(a) (4) (B). The second statute relates to occasions when a surety’s

principal will be considered surrendered or released. See OCGA §

17-6-31 (c), (d) (1). And the final statute concerns a defendant’s

ability to restrict access to his criminal history record. See OCGA §

35-3-37 (j) (3). This statute allows criminal history to be restricted

for a dead-docketed charge only when (1) the charge has remained

on the dead docket for more than 12 months, (2) the charged

individual petitions the court to restrict access and the court hears

evidence and determines whether restriction is appropriate and why

the count was dead-docketed, and (3) there is no active warrant

pending for the individual. See id.

Nothing about these statutes reveals that a dead-docketed

count is to be treated as a final disposition. Indeed, the treatment of

19 dead-docketed counts under OCGA § 35-3-37 (j) (3) ⸺ waiting 12

months after dead-docketing and examining the reasons for the

dead-docketing ⸺ acknowledges that merely dead-docketing a count

does not necessarily constitute a final disposition.

(b)Extensive Georgia case law treats dead-docketed counts as

pending below.

The term “dead-docketed” is really a misnomer; it refers to a

procedural, administrative device, not to the termination of a

matter. As mentioned above, a dead-docketed count may be

reinstated to the active docket any time at the trial court’s direction.

Inactive and final are not the same thing. As this Court explained

before, placing a count or counts on the dead docket “certainly

constitute[s] neither a dismissal nor a termination of the

prosecution in the accused’s favor. A case is still pending which can

be called for trial at the judge’s pleasure, or upon which the accused

can make a demand for trial.” Phillips v. State, 279 Ga. 704, 705 (1)

(620 SE2d 367) (2005) (punctuation omitted; emphasis added)

(quoting Beam, 265 Ga. at 855 (3) n.3) (relying on this principle to

20 hold that a defendant was not entitled to any special notice when his

case was removed from the dead-docket for retrial). Because the trial

court can return a dead-docketed count to the active docket at any

point, such a count remains pending. See Courtenay v. Randolph,

125 Ga. App. 581, 582 (2) (188 SE2d 396) (1972) (“Placing a case

upon the dead docket certainly constitutes neither a dismissal nor a

termination of the prosecution in the accused’s favor. A case is still

pending which can be called for trial at the judge’s pleasure, or upon

which the accused can make a demand for trial.”); Wilson v. State,

240 Ga. App. 681, 681 (523 SE2d 613) (1999); Ben W. Studdard, Ga.

Crim. Trial Practice § 18.19 (2020-2021 ed.) (“A case is still pending,

even though on the dead docket, and the defendant can make a

demand for trial.”). In the context of malicious prosecution and

malicious arrest cases, which require as an element that the

prosecution has been terminated in the plaintiff’s favor, our courts

have held that element was not yet satisfied when the arrest

warrant or indictment was placed on a dead docket, because the

underlying criminal action remained pending. See Watkins v.

21 Laser/Print-Atlanta, 183 Ga. App. 172, 172-173 (1) (358 SE2d 477)

(1987); McCord v. Jones, 168 Ga. App. 891, 892-893 (311 SE2d 209)

(1983); Webster v. City of East Point, 164 Ga. App. 605, 609 (3) (294

SE2d 588) (1982). All of these authorities squarely articulate the

principle that a dead-docketed count has not been finally decided

until it has been dismissed, nolle prossed, or resulted in a judgment

by a guilty plea or trial.

Regardless of the practical necessities a trial court may have

for placing a count on the dead-docket, those reasons do not change

the plain meaning of a statute governing when an appeal may be

pursued. The language of OCGA § 5-6-34 (a) (1) does not provide

that there is a final judgment when “the case is not active below”; it

provides instead that there is a final judgment when the “case is no

longer pending below.” We do not have the power to ignore the

meaning of words, nor do we have the power to rewrite statutes to

better suit the perceived needs of courts or parties. See State v.

Fielden, 280 Ga. 444, 448 (629 SE2d 252) (2006); see also Duke v.

State, 306 Ga. 171, 174-187 (2), (3) (829 SE2d 348) (2019) (overruling

22 a decision in which this Court purported to create a judicial

exception to the statutory requirements for bringing an

interlocutory appeal under OCGA § 5-6-34 (b), even though those

requirements may sometimes interfere with “the interests of judicial

economy”).

When the legislature enacted the current version of OCGA § 5-

6-34 (a) (1) in 1984, it did so against the backdrop of cases like

Courtenay, McCord, and Webster, which held that the dead-

docketing of a case does not terminate the case. That context informs

the meaning of “when the case is no longer pending . . . below.” The

plain meaning of that phrase, bolstered by decades of precedent,

makes clear that when a count is dead-docketed, it remains pending

below even if it is not being actively litigated. And our precedent

unequivocally holds that when a count is pending below, so is the

case of which that count is a part. Because the case remained

pending below, the Court of Appeals was correct to dismiss the

appeal because it was not from a final judgment under OCGA § 5-6-

34 (a) (1).

23 The dissent thinks our conclusion — one reached through

ordinary application of long-standing principles of statutory

construction — is wrong. But the dissent reaches the opposite view

without articulating or applying any principles of statutory

construction. Indeed, while agreeing that the meaning of “pending”

is central to this case, the dissent at no point explains what it thinks

“pending” means, much less cites even a single legal authority for

such a meaning. Instead, the dissent turns its focus to whether a

case is no longer “active.” But “active” is not a word that appears in

OCGA § 5-6-34 (a) (1), relevant Georgia precedent, or any of the

definitions we have identified, and the dissent does not explain why

“active” is a word that has any legal relevance to the question before

us today. We readily acknowledge that a dead-docketed count is not

active during its time on the dead docket, but we are aware of no

legal authority of any kind that determines whether a case is

“pending” based on whether that case has a presently “active” count.

Dockets in many criminal cases are “inactive” for months at a time,

but that does not mean that the cases are no longer “pending” in the

24 trial court and can be immediately appealed during those dead

periods. The dissent also places emphasis on the word “dead,” but

that word is also not in the statute and, as we have shown, a dead-

docketed count is not really dead, merely inactive.3

Moreover, as mentioned above, longstanding precedent from

the Court of Appeals (which, although not binding on us, has never

been overruled and has been the law of Georgia for some time) bars

malicious prosecution and malicious arrest lawsuits predicated on

dead-docketed counts precisely because those counts remain

undecided. The dissent’s view would uproot this settled law and our

own decision in Phillips, but it does not engage in an analysis of why

those decisions should be abandoned. As we explain below, we share

some (but not all) of the dissent’s concerns about the practical

implications of our decision today. But the judicial power the

Georgia Constitution vests in us does not include the power to

3 Or, as Miracle Max might say, only “mostly dead.” See The Princess

Bride (20th Century Fox 1987) (“There’s a big difference between mostly dead and all dead. Mostly dead is slightly alive.”).

25 rewrite statutes in ways we believe would achieve better outcomes;

that power is vested solely in the General Assembly.

4. The General Assembly may wish to amend OCGA § 5-6-34 (a) to authorize appeals in this situation.

The dissent’s and the parties’ agreement that Seals’s appeal

should be heard now does not empower us to create jurisdiction

where it is not authorized by statute and is thus lacking. See Veasley

v. State, 272 Ga. 837, 839 (537 SE2d 42) (2000). But the dissent does

raise legitimate policy concerns that the General Assembly should

consider in deciding whether to amend OCGA § 5-6-34 (a) to allow

for immediate appeals in cases where the only non-resolved counts

are dead-docketed.4

Allowing an immediate appeal in a case like Seals’s could

expedite resolution, without first requiring either (1) the trial court

to dismiss or nolle pros a count charging a serious crime without

4 We note in this regard that OCGA § 5-6-34 (a) has been amended over

the years to include other situations (none applicable here) in which immediate appeals are authorized despite the case not being final. See id. (a) (2)-(13). OCGA § 5-7-2 also has been amended to authorize the State to take immediate appeals of certain cases that would otherwise require a certificate of immediate review. See id. (b), (c).

26 certainty that the defendant will end up serving a significant

sentence on other counts, or (2) a retrial that might not result in any

additional time being served, even if a guilty verdict is returned,

depending on how the trial court handles sentencing and the result

on appeal.5 And, although we are confident that the trial judges and

prosecutors of this State would conduct themselves appropriately,

the potential for abuse of a system that allows a dead-docketed count

to postpone an appeal indefinitely does pose a troubling prospect.6

But any constitutional claims that might arise from such abuse

would be as-applied, are not present here where Seals never

requested a certificate of immediate review, and offer no basis for a

thumb on the scale of the interpretive question before us today.7 And

5 Legislation to allow immediate appeals in cases like this one might well

be able to be crafted in a more targeted manner than the dissent’s interpretation of the existing statute; that interpretation, which necessarily applies to all cases with dead-docketed counts, might well force more unwanted piecemeal appeals than a more targeted legislative rewrite could achieve. 6 A conviction that is not a final judgment is, of course, appealable if a

certificate of immediate review is sought timely and granted by the trial court. See OCGA § 5-6-34 (b). But the denial of a certificate is unreviewable. See Duke, 306 Ga. at 179 (3) (a). 7 We also note that the Court of Appeals has held that it is an abuse of

discretion to dead-docket a criminal count over the objection of the defendant. See Newman v. State, 121 Ga. App. 692, 694 (3) (175 SE2d 144) (1970).

27 other concerns the dissent articulates are less well-founded. In

particular, we do not share the dissent’s concern that certificates of

immediate review would not be available due to the requirement

that they be sought within ten days after the order sought to be

appealed. The dissent points out correctly that transcripts almost

always take longer than ten days to complete. But that poses a

problem only in the unlikely event that an appeal is sought directly

from the conviction and sentence. Under existing practice, the far

better course is to file and litigate a motion for new trial (during

which the transcripts will be completed), and only then seek a

certificate of immediate review in the event that the motion for new

trial is denied. Nothing about this opinion’s construction of the

statutory terms “case” and “pending” affects the ability of a

defendant to file a motion for new trial as to a count on which he or

she has been convicted; the motion for new trial statute uses

completely different language that allows the filing of such a motion.

See 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

28 judgment on the verdict or entry of the judgment where the case was

tried without a jury.”).8

In any event, generalized concerns about potential abuse of

statutory language are for the General Assembly to address. When

Georgia law is clear ⸺ and here it is ⸺ our task is merely to apply

it. As the United States Supreme Court recently observed, a

“[c]ourt’s task is to discern and apply the law’s plain meaning as

faithfully as we can, not ‘to assess the consequences of each approach

and adopt the one that produces the least mischief.’” BP P.L.C. v.

Mayor and City Council of Baltimore, 593 U.S. ____, ___ (141 SCt

1531, 209 LE2d 631) (2021) (quoting Lewis v. City of Chicago, 560

U.S. 205, 217 (130 SCt 2191, 176 LE2d 967) (2010)).

Judgment affirmed. All the Justices concur, except Melton, C. J., and LaGrua, J., who dissent.

8 It is also possible that in circumstances like Seals’s, a trial court might

sever the mistried count to allow the immediate appeal of the counts on which a judgment was entered. See OCGA § 16-1-7 (c) (“When two or more crimes are charged as required by subsection (b) of this Code section, the court in the interest of justice may order that one or more of such charges be tried separately.”); Dingler v. State, 233 Ga. 462, 463-464 (211 SE2d 752) (1975) (adopting ABA’s standard on severance of charges).

29 LAGRUA, Justice, dissenting.

The majority’s conclusion that “dead” means “pending” is

illogical. Once a count is moved to the dead docket, the count is

dead. I have grave concerns about the majority’s opinion in this

case, and thus, I must respectfully dissent.

1. OCGA § 5-6-34 (a) identifies the categories of trial court

judgments that are directly appealable to this Court or the Court of

Appeals. Seals directly appealed his child molestation conviction to

the Court of Appeals as a “final judgment” under OCGA § 5-6-34 (a)

(1), which defines “final judgments” as those “where the case is no

longer pending in the court below.” Id. Given this definition, what

it means to be “pending” is central to our analysis of whether Seals’s

child molestation conviction — which was irrefutably resolved and

disposed of below — could be directly appealed after his rape count

was placed on the dead docket. The majority erroneously concludes

that the dead-docketed count is still pending, and a direct appeal

cannot be had. I conclude otherwise.

30 The Georgia Code does not define “pending” in the context of

OCGA § 5-6-34 (a) (1) or otherwise, presumably because the

meaning is clear. And, significantly, as will be explained further in

this dissent, the dead-docketing procedure is not a creature of any

statute, but was born out of necessity and convenience in the trial

courts to effectively and efficiently address criminal charges that

would otherwise remain pending against a criminal defendant or

would appear on the trial court’s active criminal docket. This

procedural tool, acknowledged by the majority to be “a common and

longstanding practice in Georgia courts,” can be requested by the

State, by the defendant, or at the recommendation of the trial court

to resolve and close a case or certain counts of an indictment

(hereinafter “case/count”) until it can be tried or retried, if ever.

(Maj. Op. at 739.) The dead-docketing procedure will generally

commence before trial or following a mistrial, but requires a motion

by one of the parties and an affirmative act by the trial court; an

order placing a case/count upon the dead docket (or denying the

motion) will follow. At the conclusion of this process, the case/count

31 at issue is removed from the court’s active docket and placed on the

dead docket.

2. Before our consideration of this granted certiorari, the

majority of cases addressing the dead docket procedure originated

from our Court of Appeals and the Eleventh Circuit Court of

Appeals, neither of which are binding on this Court.9 See, e.g.,

Howard v. Warden, 776 F3d 772 (11th Cir. 2015); State v. Creel, 216

Ga. App. 394, 394-395 (454 SE2d 804) (1995); State v. Marcus, 206

Ga. App. 385 (425 SE2d 351) (1992); McCord v. State, 168 Ga. App.

891 (311 SE2d 209) (1983); Courtenay v. Randolph, 125 Ga. App. 581

(188 SE2d 396) (1972); Newman v. State, 121 Ga. App. 692 (175

SE2d 144) (1970). And, in these cases, the Court made no effort to

reconcile the idea that something could be “dead” with the notion

9 Only two cases from our Court have explicitly addressed the use of the

dead docket. See, e.g., Phillips v. State, 279 Ga. 704, 705 (1) (620 SE2d 367) (2005); Beam v. State, 265 Ga. 853, 855, n.3 (463 SE2d 347) (1995). The Beam case explained the dead-docketing procedure in reliance upon opinions from the Court of Appeals. Beam, 265 Ga. at 855, n.3. Phillips relied on the dead- docketing language from Beam and simply addressed whether a defendant received sufficient notice for due process purposes that his case was being removed from the dead docket for a retrial of certain of his charges. Phillips, 279 Ga. at 705.

32 that it could somehow simultaneously be “pending,” as well. See

Courtenay, 125 Ga. App. at 583. In addition, while the Court

determined that “statutory authority for [the] criminal dead dockets

is contained in” OCGA § 15-6-61 (a) (4) (B) (formerly Ga. Code Ann.

§ 24-2714 (5), (7)), this is misleading. Creel, 216 Ga. App. at 395. See

also Newman, 121 Ga. App. at 694.

The dead docket was an existing administrative procedure

used by trial courts when it was incorporated by the legislature into

OCGA § 15-6-61 (a) (4) (B) and prior versions of this statute. After

trial courts’ long implementation of this procedural device, the

maintenance of the dead docket was included by statute among the

duties of a clerk of superior court.10 See OCGA § 15-6-61 (a) (4) (B).

Under OCGA § 15-6-61 (a) (4) (B), the clerk of superior court has a

duty to maintain an automated criminal case management system,

which shall contain: (1) a summary record of all criminal

10 As discussed in the majority opinion, the dead docket is also referenced

in OCGA § 17-6-31 (c), (d) (1) in relation to when a surety’s principal will be considered surrendered or released, as well as in OCGA § 35-3-37 (j) (3), which addresses a criminal defendant’s ability to restrict access to his or her criminal history record.

33 indictments in which true bills are rendered; (2) all criminal

accusations that have been filed in the office of the clerk of superior

court; and (3) entries of other matters of a criminal nature filed with

the clerk, including quasi-civil proceedings and entries of cases

which are ordered dead-docketed.

The Court of Appeals’ conclusion in Newman and its progeny

(and of this Court in reliance thereon) that a dead-docketed count is

a pending count defies reason. As a practical and procedural matter,

when a case/count is moved to the dead docket, it has

simultaneously been removed from the active docket. See Marcus,

206 Ga. App. at 385 (“Following the arrest of defendant, the case

was removed from the dead docket and returned to active status.”).

See also Howard, 776 F3d at 775-776 (holding that because the trial

court moved the defendant’s indictment to the Georgia “dead

docket,” “[b]y definition, the indictment is not active, see OCGA §

15-6-61 (a) (4) (B), and imposes no present restraints on [the

defendant’s] liberty” (emphasis omitted)). At this juncture, the

case/count is not active or pending; it is, by its very description, dead

34 and remains so unless or until it is returned to the active docket.

See OCGA § 15-6-61 (a) (4) (B). See also Howard, 776 F3d at 775-

776. Additionally, although this Court and the Court of Appeals

maintain that a dead-docketed case/count is a “pending” case/count,

Newman and its progeny also acknowledge that a dead-docketed

case/count merely “can be called for trial at the judge’s pleasure” and

“may be reinstated.” Creel, 216 Ga. App. at 395 (emphasis supplied).

These are terms of possibility, not certainty. While a dead-docketed

case/count may conceivably become alive and active again, albeit

only through the affirmative act of moving it off the dead docket and

returning it to the active docket, the case/count may just as

conceivably remain dead and inactive. And, this uncertain and

indefinite outcome should not affect our analysis here. Here, in the

moment that Seals filed a direct appeal of his child molestation

conviction, his rape count was dead.

3. This conclusion comports with how a dead-docketed

case/count has been consistently treated in our trial courts, where

the procedure was first adopted and continues to be utilized. And,

35 to conclude otherwise would render the dead docket meaningless,

raise serious due process concerns, and potentially thwart appellate

review until an indeterminate or even non-existent time.

Interlocutory appellate review requires both trial court and

appellate court approval, and thus, a convicted defendant is not

guaranteed an appeal. See OCGA § 5-6-34 (b) (interlocutory appeal

may be obtained only after the trial court certifies that its judgment

“is of such importance to the case that immediate review should be

had,” and, if such certification is made, the appellate court has

“discretion[ ]” to permit an appeal). Likewise, habeas review cannot

be sought until the judgment is final and all appeals have been

exhausted. See OCGA § 9-14-42 (c).

Under our current ruling, whenever a criminal trial results in

a conviction on one or more counts and a mistrial on others, the

defendant cannot directly appeal his conviction — even when a

written disposition has been filed of record — if the defendant’s

mistried counts are placed on the dead docket. Instead, in these

circumstances, which are common, the defendant must ask the trial

36 court for a certificate of immediate review within just ten days of the

entry of the judgment of conviction. See OCGA § 5-6-34 (b). But,

even if the defendant timely seeks this certificate, he is not assured

a right to appeal. The trial court must then determine that the

judgment is “of such importance to the case that immediate review

should be had[.]” Id. And, if the trial court makes this finding and

grants the certificate, the defendant will still be required to file a

petition in our Court or the Court of Appeals within another ten

days, setting forth “the need for such an appeal and the issue or

issues involved therein.” Id. This Court or the Court of Appeals

must then conclude, in our “respective discretions,” that an issue of

such importance exists. Id.

I fear that our trial and appellate courts will not view a

defendant’s request for immediate review of his conviction, where he

also has a dead-docketed count, as a matter of such importance that

immediate review must be had. And, even if they do, the time period

for seeking and filing an interlocutory appeal in this context is

unrealistic given that the defendant has a constitutional right to

37 retain or be appointed conflict-free appellate counsel to represent

him during the appeal, which can be a lengthy process. See

Williams v. Moody, 287 Ga. 665, 667 (2) (697 SE2d 199) (2010) (“[A]

convicted defendant is entitled to effective assistance of counsel on

direct appeal,” and “[w]here a constitutional right to counsel exists,

the Sixth Amendment to the United States Constitution requires

that counsel’s representation be free from conflicts of interest[;]

[t]hus, a convicted defendant is entitled to appellate representation

by conflict-free counsel as a matter of constitutional law.”). See also

Rowland v. State, 264 Ga. 872, 874-875 (2) (452 SE2d 756) (1995)

(“[A]s a matter of state and federal constitutional law, a

criminal defendant is entitled to effective assistance of counsel in

pursuing his appeal of right.”). Additionally, OCGA § 5-6-34 (b)

allows the party seeking an interlocutory appeal to include parts of

the record with the petition, but trial transcripts and records of

exhibits can take months to prepare and file into the record. As

such, the record would not be readily available to the petitioner in

pursuing an interlocutory appeal.

38 While I recognize that “Georgia law is well settled that the

right to appeal is not constitutional, but instead depends on

statutory authority,” Georgia has created a statutory right to a

direct appeal following entry of a final judgment of conviction. Duke

v. State, 306 Ga. 171, 172 (1) (829 SE2d 348) (2019) (citation and

punctuation omitted). See also OCGA § 5-6-34 (a) (1). To preclude

a defendant from immediately attacking his conviction on appeal

would hinder his due process rights, especially considering that “this

Court has held that it will not review the discretion vested in the

trial court in granting or refusing a certificate for immediate review

of interlocutory rulings.” Duke, 306 Ga. at 179 (citation and

punctuation omitted). By construing the word “pending” in OCGA §

5-6-34 (a) (1) to include charges that are dead and inactive, the

majority has interpreted the statute in a manner that obtains

absurd results, which this Court should not countenance and which

the legislature could not have intended. See, e.g., Haugen v. Henry

County, 277 Ga. 743, 746 (2) (594 SE2d 324) (2004) (“The judiciary

has the duty to reject a construction of a statute which will result in

39 unreasonable consequences or absurd results not contemplated by

the legislature.”) (citations and punctuation omitted).

4. “It is the duty of this court to raise the question of its

jurisdiction in all cases in which there may be any doubt as to the

existence of such jurisdiction.” Veasley v. State, 272 Ga. 837, 838

(537 SE2d 42) (2000) (citation and punctuation omitted). And, in

applying this principle, the majority opinion notes that “we have

often dismissed for lack of jurisdiction appeals in criminal cases

because verdicts have been rendered or sentences have been

imposed on less than all counts of an indictment or accusation.”

(Maj. Op. at 739.) However, we have also routinely considered direct

appeals of convictions where, as here, other counts of the indictment

were dead-docketed at the time of the appeal. See, e.g., Pender v.

State, 311 Ga. 98, 98, n.1 (856 SE2d 302) (2021) (following trial, the

jury found the appellant guilty on seven counts of the indictment,

but was unable to reach a verdict on two of the counts, which were

placed on the dead docket; a direct appeal followed); Terrell v. State,

304 Ga. 183, 183, n.1 (815 SE2d 66) (2018) (prior to trial, six of the

40 fourteen counts of the indictment were dead-docketed; the appellant

then stood trial on the remaining counts; the jury found him guilty

on all counts; and appellant filed a direct appeal); Faust v. State,

302 Ga. 211, 211, n.1 (805 SE2d 826) (2017) (following a mistrial,

two counts of the indictment were placed on the dead docket; after

which the appellant was retried on the remaining counts, convicted

on these counts, and filed a direct appeal); Walker v. State, 295 Ga.

688, 688, n.1 (763 SE2d 704) (2014) (prior to trial, one count of the

indictment was dead-docketed, and the appellant was then tried and

convicted on the remaining counts, followed by a direct appeal);

Jones v. State, 284 Ga. 672, 672, n.1 (670 SE2d 790) (2008) (following

trial, the jury found appellant guilty on several counts, not guilty on

one count, and failed to reach a verdict on the final count, which was

then placed on the dead docket; a direct appeal followed); Taylor v.

State, 282 Ga. 44, 44, n.1 (644 SE2d 850) (2007) (following trial, the

appellant was convicted on all counts, except for one, which was

placed on the dead docket, and appellant timely filed a direct

appeal); Thomas v. State, 279 Ga. 363, 363, n.1 (613 SE2d 620)

41 (2005) (one count of the indictment was dead-docketed, and the

appellant was then tried, convicted, and sentenced on the remaining

counts; a direct appeal followed); Grier v. State, 273 Ga. 363, 363,

n.1 (541 SE2d 369) (2001) (prior to trial, the final count of the

indictment was dead-docketed, and the appellant was then tried and

found guilty of the remaining counts; after sentencing, appellant

timely filed a direct appeal).

The majority opinion holds that these cases provide no

authority for our consideration of a case in this posture because

[i]n none of those cases was there any discussion of jurisdiction at all, much less analysis and a holding on the issue. Decisions of this Court and of the Court of Appeals do not stand for points that were neither raised by the parties nor actually decided in the resulting opinion, and questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.

(Citation and punctuation omitted.) (Maj. Op. at 745.)

However, I am not relying on these cases for their authority. I

cite these cases to demonstrate that we have rightly considered

direct appeals of cases in this posture for more than 20 years (and

42 possibly longer given that the cases noted above are not an

exhaustive account).

5. I conclude that the dead-docketing of Seals’s rape charge

and the denial of his motion for new trial on the child molestation

conviction left no part of his case pending below, and he was

authorized to directly appeal his conviction to the Court of Appeals

under OCGA § 5-6-34 (a) (1).

Noting that my view is not the prevailing one, I strongly urge

our legislature to take affirmative steps to change the language of

OCGA § 5-6-34 (a) to authorize a direct appeal by a criminal

defendant of a case in this posture. To leave the statute unchanged,

especially in light of our majority opinion, will upend years of trial

court practice where the dead docket procedure has been utilized for

a myriad of practical, strategic, and economic reasons and will leave

defendants without a meaningful and effectual method to appeal

their convictions.

I am authorized to state that Chief Justice Melton joins in this

dissent.

43 Decided June 18, 2021.

Certiorari to the Court of Appeals of Georgia.

Lawrence W. Daniel; James K. Luttrell, for appellant.

Ryan R. Leonard, District Attorney, Sarah E. Hillern,

Elizabeth D. Racine, Sean A. Garrett, Assistant District Attorneys,

for appellee.