FIFTH DIVISION
MCFADDEN, P. J.,
HODGES and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
November 3, 2025
In the Court of Appeals of Georgia A25A1074. THE STATE v. CAMPBELL.
HODGES, Judge.
The State appeals from a trial court order which terminated its prosecution of Jerry Campbell for criminal trespass and misdemeanor obstruction of law enforcement officers. Because Campbell moved for, and the trial court granted, a motion for directed verdict before the State had concluded its presentation of evidence, we find that the trial court’s order is void and must be vacated.
Campbell was charged by accusation with criminal trespass for failing to leave a Target store when asked to leave by the store’s representative, and misdemeanor obstruction of law enforcement officers for resisting arrest. The case proceeded to a jury trial. During the presentation of the State’s case, an officer who encountered
Campbell at Target testified and his body camera recording was played for the jury. On direct examination, the prosecutor asked the officer about the meaning of a reference on the recording to “a call for a 24.” The officer responded, “[u]sually somebody who is not always mentally there.”
At that point, counsel for Campbell objected and moved for a mistrial. The prosecutor explained that she had asked the question because she thought that “a call for a 24” was a reference to criminal trespass and that she did not expect the officer’s response. She asked the court to give a curative instruction instead of granting a mistrial. The court asked the officer whether he knew anything more about the case than what was on the body camera recording. Before the officer completed his answer, the court asked the officer if that was “about all you’re going to testify to[.]” After the officer indicated it was, the following exchange occurred:
COURT: Well, . . . we certainly don’t need to try this case again. And we’re already looking at a directed verdict of acquittal on the criminal trespass charge. That’s going to happen. And then on the willful obstruction, how could you — it says resisting arrest. What was the way that [the first officer] testified about resisting arrest?
PROSECUTOR: When he went to arrest Mr. Campbell, he pulled away from him.
THE COURT: I don’t remember him — he talked about how he
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arrested him after he hit him with the baton, right? And then he grabbed his arm, and he walked him to where then the officer came, right? PROSECUTOR: No, Your Honor. That wasn’t the testimony. [The first officer] testified that he went to pull away from him and he was struggling with him to the point where he could not get him in handcuffs until [the second officer] arrived on scene. COURT: And he talked about how— I didn’t hear about a struggle. Did you hear about a struggle? DEFENSE COUNSEL: No. COURT: I didn’t either. I heard that you couldn’t arrest — you couldn’t put handcuffs on somebody who didn’t want to be handcuffed. DEFENSE COUNSEL: Yes. COURT: I didn’t hear any specifics about what happened. DEFENSE COUNSEL: I did not, Your Honor, but I — COURT: I didn’t either. All right. But now we’re at a mistrial. So I think — you know what, I don’t know how I don’t grant the mistrial. But I’m going to find, too, that although I can [accept the prosecutor’s] explanation for it, you know, she didn’t know what she was asking about. DEFENSE COUNSEL: Your Honor, alternatively, the defense would be asking — could ask for a directed verdict on all the charges, in which case jeopardy has attached, if the directed verdict is granted, for that to dispose of the case. COURT: I think it does already with the misconduct of the prosecution by asking that question and bringing in — whether I have to find it willful or not, I think it certainly looks that way. They brought in Mr. Campbell’s mental—they’re questioning Mr. Campbell’s mental health
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by referencing that. And so I’m not sure they’re going to be able to prosecute him anyways on their causing of this mistrial. I’m going to do it. I’m — you know what, I’m going to do it on both grounds. I’m going to directed verdict or acquittal [sic] on both counts and grant your mistrial at the same time. So — on alternative grounds.
PROSECUTOR: Your Honor?
COURT: Yes.
PROSECUTOR: At this time, the State hasn’t rested its case.
COURT: That’s okay. You can object, and you can appeal me if you like on both of these issues if you’d like to take it up on appeal. But that’s what I’m going to do. Okay.
The trial court then released the jury and entered a written order granting Campbell’s “motion for directed verdict of acquittal on both counts in the accusation or, in the alternative, for mistrial caused by the prosecution during the trial of [the] matter.” The State filed a notice of appeal to challenge the trial court’s order.
1. The State first contends that the trial court’s grant of a directed verdict before the close of its case resulted in a void order. We agree. The authority of a trial court to grant a directed verdict of acquittal in a criminal case is provided only by statute,1 and the relevant statute provides that the time for a defendant to move for a
1 See Allen v. State, 228 Ga. 859, 860 (2) (188 SE2d 793) (1972) (concluding it was not error for the trial court to refuse to direct a verdict because “there was no
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directed verdict is either “at the close of the evidence offered by the prosecuting attorney or at the close of the case[.]” See OCGA § 17-9-1(b). There is no statutory authority for a defendant to move the trial court to direct a verdict of acquittal before the close of the State’s case, nor does the statute provide authority for the trial court to grant such a motion. See Mann v. State, 167 Ga. App. 829 (1) (308 SE2d 12) (1983) (“In this case appellant moved for a directed verdict before any evidence was presented; thus, the trial court did not err in denying that motion.”). Because a directed verdict in a criminal case is only authorized where “there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal[,]” see OCGA § 17-9-1(a), it follows the trial court is only authorized to enter such an order after the State is permitted to present its evidence. Because the trial court did not permit the State to rest its case, we conclude that the trial court did not have the authority to direct a verdict of acquittal.
While we have not previously contemplated whether an order directing a verdict of acquittal before the State has finished presenting its evidence is void or
statutory authority for the direction of a verdict in a criminal case” at the time the case was decided).
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simply erroneous, we now conclude that such an order is void. In State v. Sumlin, 281 Ga. 183, 184 (1) (637 SE2d 36) (2006), our Supreme Court determined that a trial court’s order was void when it granted a mistrial two months after a jury had returned its verdict because “[o]nce the jury returns its verdict, the trial has ended and the time for granting a mistrial has passed.” Id. Similarly, here, a trial court’s order granting a directed verdict before the State finishes its presentation of the evidence is void because the trial is still ongoing, and the time for granting such a motion has not begun.2 2. Because the trial court’s order directing a verdict of acquittal was void, the State could properly challenge this order through a direct appeal. OCGA § 5-7-1(a)(6) (authorizing the State to appeal from “[f]rom an order, decision, or judgment of a court where the court does not have jurisdiction or the order is otherwise void under the Constitution or laws of this state”); see Sumlin, 281 Ga. at 184 (2).
2 We note, however, the Supreme Court has observed that it “has not fully explained the contours of what makes an erroneous order issued by a court of competent jurisdiction void[.]” (Punctuation omitted). In the Interest of A. H., 317 Ga. 31, 32 (2) (891 SE2d 785) (2023). Regardless of whether the Supreme Court has set forth its reasoning, we can find no meaningful distinction between the procedural error in Sumlin and the instant case, and, therefore, conclude the order must be void.
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Campbell argues that we should not consider this appeal because the “Double Jeopardy Clause [of the Fifth Amendment to the United States Constitution] bars retrial following a court-decreed acquittal,” and the dissent would dismiss the appeal on this basis. This argument, however, fails because we have determined in Division 1 that the purported directed verdict order is void.
A void judgment is in reality no judgment at all. It is a mere nullity.
It is attended by none of the consequences of a valid adjudication, nor is it entitled to the respect accorded to one. It can neither affect, impair, nor create rights, but whenever it is brought up the party may assail its [pretensions] and show its worthlessness.
(Citation and punctuation omitted.) Hubbard v. State, 225 Ga. App. 154, 155 (483 SE2d 115) (1997). Both the Supreme Court and this Court have observed that the Double Jeopardy Clause will not bar retrial when the defendant seeks the termination of a prosecution. See State v. Johnson, 267 Ga. 305 (477 SE2d 579) (1996) (a defendant who consents to a mistrial may not thereafter utilize the mistrial as the basis of a plea of double jeopardy); Brown v. State, 261 Ga. App. 115, 118 (582 SE2d 13) (2003) (“[A] defendant who either causes or consents to a mistrial can be retried without violating double jeopardy principles.”); see also OCGA § 16-1-8(a), (e)(1) (providing that when
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the “accused consents to the termination” of a prior prosecution, the case was not “terminated improperly” as to bar a subsequent trial).3 As set forth above, Campbell sought both the directed verdict of acquittal and the mistrial. “[A] party may not complain on appeal of a ruling that he contributed to or acquiesced in by his own action, trial strategy, or conduct.” (Citation and punctuation omitted.) Hornbuckle v. State, 300 Ga. 750, 756 (5) (797 SE2d 113) (2017). Accordingly, Campbell’s motion to dismiss this appeal is denied.
3. Because we conclude that the order directing a verdict of acquittal in this case is void, we need not consider the State’s remaining enumeration of error.
Judgment vacated and case remanded. Pipkin, J., concurs. McFadden, P.J., dissents.
3 We have previously observed that OCGA § 16-1-8 “expands the proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions[.]” (Citation and punctuation omitted). Laghaeifar v. State, 360 Ga. App. 843, 845 (861 SE2d 808) (2021).
In the Court of Appeals of Georgia A25A1074. THE STATE v. CAMPBELL.
MCFADDEN, Presiding Judge, dissenting.
I respectfully dissent. The order from which the state appeals does not fall into any of the categories of OCGA § 5-7-1 (a), the statute that authorizes the state to take appeals in certain circumstances. So we must dismiss this appeal.
The state relies on three paragraphs of OCGA § 5-7-1 (a) as the bases of its appeal: paragraph (1), which allows the state to appeal from an order dismissing an accusation; paragraph (3), which allows the state to appeal from an order sustaining a plea in bar when the defendant has not been put in jeopardy; and paragraph (6), which allows the state to appeal from a void order. The majority relies on OCGA § 5-7-1 (a) (6), so I begin there.
(1) OCGA § 5-7-1 (a) (6)
The state relies on OCGA § 5-7-1 (a) (6), which provides that the state can appeal “[f]rom an order . . . of a court where the court does not have jurisdiction or the order is otherwise void under the Constitution or laws of this state[.]” It argues that the trial court’s order is void because the court could not grant a directed verdict of acquittal before the state had completed the presentation of its case. The majority adopts the state’s reasoning.
OCGA § 17-9-1 (b) addresses the timing of a defendant’s directed verdict motion. It provides that “[t]he defendant shall be entitled to move for a directed verdict at the close of the evidence offered by the prosecuting attorney or at the close of the case, even if he fails to introduce any evidence at the trial.” The trial judge
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made clear the basis for his determination that the state would not be able to make its case, at least on the trespass. He based his determination on the pretrial order excluding the testimony of the representative of the Target store for the state’s failure to list him on the witness list; and on his exchange with the second testifying officer. The trial judge knew that none of the state’s witnesses could testify to Campbell’s conduct at the Target store and that under the terms of the pretrial order no witness who could, would be allowed to testify. See OCGA § 17-9-1 (a). If despite those facts, the state had in fact had the ability to make its case, it is fair to say that it should have said so, and I would characterize its failure to say so as a waiver. So the trial court was acting prematurely, but not in a complete lack of authority — and not even unfairly.
But I would not decide whether the trial court erred by granting Campbell’s motion for directed verdict before the state had completed the presentation of its case, because even if the court erred, the order was not void.
“[A] ruling is not void simply because it is erroneous.” Howard v. State, 362 Ga. App. 445, 448 (868 SE2d 846) (2022). “Nor is it the case that any improper exercise of a trial court’s authority renders a judgment void.” State v. Evans, 282 Ga. 63, 65 (646 SE2d 77) (2007) (emphasis in original). An order “is not void so long as
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it was entered by a court of competent jurisdiction.” State v. Glover, 281 Ga. 633, 633 (641 SE2d 543) (2007) (state could not appeal from order dismissing its earlier appeal; even if dismissal order was erroneous, it was not void because it was entered by a court of competent jurisdiction) (citation and punctuation omitted).
It is true, as the majority observes in footnote 2, that our Supreme Court recently acknowledged that it “has not fully explained the contours of what makes an erroneous order issued by a court of competent jurisdiction ‘void’ under state law for purposes of OCGA § 5-7-1 (a) (6)” nor “explicitly identified what principle or principles of law distinguish erroneous-but-valid orders from erroneous orders that are ‘void and of no legal effect’.” In the Interest of A. H., 317 Ga. 31, 32 (2) (891 SE2d 785) (2023) (citations and punctuation omitted) (declining to do so until the proper case is brought). I would follow the law as it now exists. See State v. Scott, 370 Ga. App. 40, 42 (894 SE2d 512) (2023).
The general principle that can be derived from the law as it now exists seems to be that an order is void if the trial court acts beyond its authority, rather than abuses or prematurely exercises that authority. An order is beyond the court’s authority when the court lacks jurisdiction. Glover, 281 Ga. at 633. An order is beyond the court’s
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authority when the court enters a sentence not authorized by the statutes under which a defendant was convicted, Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517) (1991), or when the sentence’s “illegality may not be waived.” State v. King, 325 Ga. App. 445, 446 (750 SE2d 756) (2013) (en banc; emphasis omitted), citing von Thomas v. State, 293 Ga. 569, 571 (2) (748 SE2d 446) (2013).
Here, the trial court’s order “does not implicate the trial court’s subject matter jurisdiction, or its jurisdiction over the person of the defendant,” Evans, 282 Ga. at 65, so it is not void on that account. Nor did the trial court act beyond his authority — granted by OCGA § 17-9-1 — in entering the order, even if he entered it erroneously. So the order is not void.
The majority relies on State v. Sumlin, 281 Ga. 183, 184 (1) (637 SE2d 36)
(2006), as authority for its argument that the timing of the trial court’s order rendered it “otherwise void under the Constitution or laws of this state[.]” OCGA § 5-6-1 (a) (6). In Sumlin, our Supreme Court held that an order granting a mistrial more than two months after the jury had returned a verdict of guilty was void because “the time for granting a mistrial ha[d] passed.” Id. But, as the court later noted in In the Interest of A. H., 317 Ga. at 32 (2), Sumlin did “not explain [ ] why this procedural error
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caused the order to be void rather than merely erroneous[.]” In the Interest of A. H., 317 Ga. at 32 (2).
In any event, any error here came before the case was submitted to the jury and was caused by premature action on the trial court’s part, rather than belated action. Because it involved, not a premature exercise of authority that would have ripened, but rather an attempt to exercise authority that had expired, Sumlin is distinguishable.
In the civil context, our courts have reversed as erroneous, rather than vacated as void, orders granting premature motions for directed verdicts. Smith v. Smith, 221 Ga. 619 (146 SE2d 721) (1966); Spivey v. Barwick, 157 Ga. 853 (122 SE 594) (1924) (“the direction of a verdict [against a party] before [that party] had completed the introduction of his witnesses and closed was erroneous, because premature”); Wilson v. Kornegay, 108 Ga. App. 318, 321 (1) (132 SE2d 791) (1963). Cf. North Ga. Feed & Poultry Co. v. Ultra-Life Laboratories, 118 Ga. App. 149, 152 (2) (162 SE2d 803) (1968) (“While it is true that the actual motion for directed verdict was made prior to the time the defendant closed his case, . . . a motion for directed verdict is not essential where the evidence demanded a verdict.”) (citation omitted).
That civil case law is controlling in this criminal case because the relevant language in the statutes authorizing trial courts to grant directed verdicts in civil and criminal cases is identical. Under the Civil Practice Act, “A motion for a directed verdict may be made at the close of the evidence offered by an opponent or at the close of the case.” OCGA § 9-11-50 (a) (emphasis added). Under Title 17, Criminal Procedure, “The defendant shall be entitled to move for a directed verdict at the close of the evidence offered by the prosecuting attorney or at the close of the case . . . .” OCGA § 17-9-1 (b) (emphasis added).
I conclude that whether or not the trial court’s order was erroneous, it was not void. So the state could not rely on OCGA § 5-7-1 (a) (6) to appeal.
Because the majority holds that the state may appeal under OCGA § 5-7-1 (a)
(6), it is necessary to address Campbell’s argument that the appeal is barred by the double jeopardy clause of the United States Constitution, US Const. Amend. V. See also 1983 Ga. Const., Art. I, Sec. I, Par. XVIII (“No person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of mistrial.”). That question is within our jurisdiction because it is expressly answered in “decisions of the Supreme Court of
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. . . the United States.” Loomis v. State, 203 Ga. 394, 402 (1) (47 SE2d 58) (1948). “A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.” United States v. Scott, 437 U.S. 82, 91 (II) (98 SCt 2187, 57 LE2d 65) (1978).
“[I]t has long been settled under the Fifth Amendment [to the United States Constitution] that a[n] . . . acquittal is final, ending a defendant’s jeopardy, and . . . is a bar to a subsequent prosecution for the same offence. . . . [I]t is one of the elemental principles of our criminal law that the Government cannot secure a new trial by means of an appeal even though an acquittal may appear to be erroneous.” Green v. United States, 355 U.S. 184, 188 (78 SCt 221, 2 LE2d 199) (1957) (citation and punctuation omitted). “The government may not appeal a trial courts grant to a criminal defendant of a directed verdict of acquittal based on an insufficiency of the evidence to support a conviction, in that a new trial would be barred by the double jeopardy clause of the Fifth Amendment.” State v. Williams, 246 Ga. 788, 788-89 (1) (272 SE2d 725) (1980).
The United States Supreme Court has explained that the finality of an acquittal holds, and “an acquitted defendant may not be retried even though the acquittal was
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based upon an egregiously erroneous foundation.” Arizona v. Washington, 434 U.S. 497, 503 (II) (98 SCt 824, 54 LE2d 717) (1978) (citation and punctuation omitted).
So even if the state were entitled to appeal the grant of the directed verdict of acquittal under OCGA § 5-7-1 (a) (6), the appeal would be barred by the Fifth Amendment.
The majority seeks to avoid this outcome by treating the trial court’s order as if it were exclusively the grant of a mistrial, which in some circumstances allows re- trial. Yet in order to deny Campbell’s motion to dismiss the appeal, the majority treats the trial court’s order as an order directing a verdict of acquittal. And, indeed, the judge weighed the evidence, effectively determined that the state had not proven and could not prove the charges, and terminated the prosecution. See Williams, 246 Ga. at 789 (1) (“A directed verdict of acquittal is based on the evidence demanding a verdict of acquittal because of a lack of conflict therein.”). To hold that the order was not the grant of a directed verdict of acquittal would be to “ignore the very plain and unambiguous language of defendant’s counsel’s motion for directed verdict and the even more plain and explicit language of the trial judge after granting the motion and
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discharging the jury.” State v. Warren, 133 Ga. App. 793, 797 (213 SE2d 53) (1975) (state could not appeal directed verdict of acquittal after jeopardy had attached).
(2) OCGA § 5-7-1 (a) (1)
OCGA § 5-7-1 (a) (1) permits the state to appeal “[f]rom an order . . .
dismissing any . . . accusation[.]” The state argues that the substance of the court’s action was to dismiss the accusation charging Campbell, because the court acted before the state had completed the presentation of its case. I disagree.
When an order purporting to grant a directed verdict of acquittal is actually, in substance, a dismissal of an indictment or accusation, it will be treated as such for the purposes of appeal. See Williams, 246 Ga. at 788-789 (1); State v. Swint, 284 Ga. App. 343, 343 (643 SE2d 840) (2007). “In this case, there was no defect in the accusation, nor was one alleged.” Berky v. State, 266 Ga. 28, 29 (463 SE2d 891) (1995).
But as detailed above, here the trial court weighed the evidence and terminated the prosecution for the state’s failure to prove the charges. The order was not in substance the dismissal of the accusation, and the state could not rely on OCGA § 5-7- 1 (a) (1) to appeal from it.
(3) OCGA § 5-7-1 (a) (3)
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OCGA § 5-7-1 (a) (3) permits the state to appeal “from an order . . . sustaining a plea or motion in bar, when the defendant has not been put in jeopardy[.]” This paragraph by its plain terms does not apply here, because Campbell had been put in jeopardy.
“Jeopardy attaches when the jury has been impaneled and sworn[.]” State v.
Arroyo, 315 Ga. 582, 584 (883 SE2d 781) (2023) (citation and punctuation omitted). Since the jury had been impaneled and sworn prior to the court’s ruling at issue here, jeopardy had attached and the state could not rely on OCGA § 5-7-1 (a) (3) to appeal from the trial court’s order.
In sum, “[b]ecause § 5-7-1 (a) establishes the universe of appeals the [s]tate is permitted to seek in criminal cases, if the [s]tate attempts an appeal outside the ambit of OCGA § 5-7-1 (a), the appellate courts do not have jurisdiction to entertain it.” State v. Wheeler, 310 Ga. 72, 74 (1) (849 SE2d 401) (2020) (citation and punctuation omitted). Whether or not the trial court erred here, the state did not have the right to appeal, we lack jurisdiction, and I would grant Campbell’s motion to dismiss the appeal.