310 Ga. 72 FINAL COPY
S20A0758. THE STATE v. WHEELER.
WARREN, Justice.
In the early morning hours of March 15, 2017, a fire broke out
in a unit of the Venetian Hills apartment complex, resulting in the
death of tenant George Hughes. Police investigated the fire,
identified Kamara Wheeler as an arson suspect, and on March 18,
2017, arrested her on an unrelated warrant. When officers
interviewed Wheeler about the apartment fire, she admitted that
she started it.1 She was then indicted by a Fulton County grand jury
for one count of malice murder, one count of felony murder
predicated on arson, and four counts of arson in the first degree.
Wheeler’s trial was scheduled to begin on September 3, 2019.
On January 17, 2019, the State provided Wheeler with a “Notice of
1 Because no trial has been held in this case, the above facts are gleaned
from police and fire department incident reports, witness statements, and the trial court’s order denying the State’s Rule 404 (b) “motion,” which is discussed in more detail below. Intent to Present Evidence of Other Acts,” and an amended notice
on August 13, 2019, indicating that it intended to offer evidence
under OCGA § 24-4-404 (b) (“Rule 404 (b)”)2 of three prior instances
in which Wheeler set or attempted to set a fire as proof of her motive
and intent in this case. The State also filed the notice and amended
notice with the trial court. It is not clear from the record whether
the State also filed a separate motion related to the Rule 404 (b)
evidence it intended to offer,3 but the record shows that the trial
2 OCGA § 24-4-404 (b) provides:
Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The prosecution in a criminal proceeding shall provide reasonable notice to the defense in advance of trial, unless pretrial notice is excused by the court upon good cause shown, of the general nature of any such evidence it intends to introduce at trial. Notice shall not be required when the evidence of prior crimes, wrongs, or acts is offered to prove the circumstances immediately surrounding the charged crime, motive, or prior difficulties between the accused and the alleged victim. 3 As explained more in Division 4 below, to comply with the requirements
of OCGA § 5-7-1 (a) (5), the State must appeal from a qualifying trial court order “excluding . . . evidence to be used by the state at trial on any motion filed by the state . . . at least 30 days prior to trial” (emphasis supplied), in addition to satisfying the requirements set out in subsections (a) (5) (A) and (a)
2 court held a hearing on August 26, 2019, at which the parties made
presentations on the Rule 404 (b) issue. After the hearing, the trial
court denied what it called the “State’s 404 (b) motion” on September
3, 2019. The State now appeals from that order under OCGA § 5-7-
1 (a) (5), arguing that the trial court abused its discretion in denying
the motion because it omitted key facts from its analysis and
misapplied the three-part test governing the admissibility of “other
acts” evidence under Rule 404 (b). But we do not reach the merits
of those claims. As explained below, we hold that the timing and
(5) (B). Although a Rule 404 (b) notice filed with a trial court may be construed as such a motion, trial courts are “not required to treat [a Rule 404 (b)] notice as a motion filed under OCGA § 5-7-1 (a) (5).” State v. Battle, 344 Ga. App. 565, 567-568 (812 SE2d 1) (2018). Here, even if the State’s Rule 404 (b) notices were construed as motions made under OCGA § 5-7-1 (a) (5), there is still a question about whether the State’s amended notice was filed timely because it was filed on August 13, less than 30 days before the then-scheduled September 3 trial. And if its Rule 404 (b) notices were not construed as § 5-7-1 (a) (5) motions, then the State’s failure to comply with paragraph (a) (5) would serve as an independent basis for dismissing the State’s appeal. But we need not resolve those questions because — as explained below in Division 5 — we dismiss the State’s appeal for failing to comply with the paragraph (a) (5) (B) certification requirement. However, because the trial court ruled on the State’s Rule 404 (b) evidence and styled its order as an “Order Denying State’s 404 (b) Motion,” we refer to the State’s 404 (b) “motion” in this opinion, notwithstanding the lack of clarity as to whether the State’s Rule 404 (b) notices qualified as motions under OCGA § 5-7-1 (a) (5). 3 certification requirements set forth in OCGA § 5-7-1 (a) (5) are
jurisdictional, and that because the State failed to comply with
OCGA § 5-7-1 (a) (5) (B), we lack jurisdiction to hear the State’s
appeal. We therefore dismiss it.
1. Legal Background.
It is well established that “[t]his Court has a duty to inquire
into its jurisdiction to entertain each appeal and review the alleged
errors of the trial court.” Pounds v. State, 309 Ga. 376, 377 (846
SE2d 48) (2020) (citation and punctuation omitted). The State’s
right to appeal in criminal cases is derived from Georgia’s statutory
law, not from its Constitution. See State v. Martin, 278 Ga. 418,
418-419 (603 SE2d 249) (2004). The State is authorized to appeal in
criminal cases under OCGA § 5-7-1 (a).4
OCGA § 5-7-1 (a) sets forth the various circumstances under
4 Before 1973, Georgia law did not provide for appeals by the State in
criminal cases. See Martin, 278 Ga. at 419. See also Ga. L. 1973, p. 297 (now codified, as amended, at OCGA § 5-7-1 et seq.). And before 2013, when the General Assembly added current paragraph (a) (5) to OCGA § 5-7-1, the State had no right to appeal a pre-trial ruling excluding evidence based on general evidentiary rules. See State v. Rosenbaum, 305 Ga. 442, 448 n.9 (826 SE2d 18) (2019).
4 which the State may file an appeal, including, for example, from an
order dismissing an indictment, § 5-7-1 (a) (1); sustaining a plea in
bar, § 5-7-1 (a) (3); suppressing or excluding illegally seized
evidence, § 5-7-1 (a) (4); or excluding the State’s evidence at trial
under certain conditions, § 5-7-1 (a) (5).5 Because § 5-7-1 (a)
establishes the universe of appeals the State is permitted to seek in
criminal cases, “‘[i]f the State attempts an appeal outside the ambit
of OCGA § 5-7-1 (a), the appellate courts do not have jurisdiction to
entertain it.’” State v. Outen, 289 Ga. 579, 580 (714 SE2d 581) (2011)
(quoting State v. Evans, 282 Ga. 63, 64 (646 SE2d 77) (2007)).
Generally speaking, “except as otherwise provided” in the
chapter of the Georgia Code authorizing the State to appeal in
criminal cases, appeals taken by the State under § 5-7-1 (a) are
“governed by the same laws and provisions as to time and other
procedures as apply to other appellants in criminal cases.” OCGA
5 Under OCGA § 5-7-2 (a), the State is generally required to obtain a
certificate of immediate review from the trial judge to take an interlocutory appeal in a criminal case. However, OCGA § 5-7-2 (b) provides an exception to this requirement for appeals taken under OCGA § 5-7-1 (a) (1), (4), (5), and (7). 5 § 5-7-4. For example, the usual 30-day deadline for filing a notice of
appeal established in OCGA § 5-6-38 applies to every type of appeal
the State files under OCGA § 5-7-1 (a) for which a more specific
deadline is not provided—including for nine of the ten paragraphs
contained in § 5-7-1 (a).
OCGA § 5-7-1 (a) (5), however, imposes several distinctive
requirements, including a much shorter deadline for filing a notice
of appeal:
(a) An appeal may be taken by and on behalf of the State of Georgia . . . in the following instances: ... (5) From an order, decision, or judgment excluding any other evidence to be used by the state at trial on any motion filed by the state or defendant at least 30 days prior to trial and ruled on prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first, if:
(A) Notwithstanding the provisions of Code Section 5-6-38, the notice of appeal filed pursuant to this paragraph is filed within two days of such order, decision, or judgment; and
(B) The prosecuting attorney certifies to the trial court that such appeal is not taken for purpose of delay and that the evidence is a substantial proof of a material fact in the proceeding[.]
6 OCGA § 5-7-1 (a) (5) (emphasis supplied). Thus, § 5-7-1 (a) (5)
permits the State to appeal from a trial court order excluding
evidence so long as the relevant motion was filed “at least 30 days
prior to trial” and ruled on before the earlier of the jury being
impaneled or the defendant being put in jeopardy, and the notice of
appeal is filed within two days of entry of the order, and the
prosecuting attorney certifies that (among other things) the appeal
is “not taken for purpose of delay.”
2. Procedural Background.
Here, the trial court denied the State’s Rule 404 (b) motion on
September 3, 2019. Between August 30 and September 5, the State
filed one premature notice of appeal and three amended notices of
appeal.6 Each invoked OCGA § 5-7-1 (a) (3), which permits the State
6 The State filed its first premature notice of appeal on the morning of
August 30, 2019, after the trial court notified the parties by e-mail that it intended to deny the State’s motion to admit the Rule 404 (b) evidence. The State then filed a premature amended notice of appeal that afternoon and a second premature amended notice of appeal on September 3, 2019, before the trial court entered its order. On September 5, two days after the trial court entered its order, the State filed a third amended notice of appeal. 7 to appeal from an order “sustaining a plea or motion in bar,” even
though the order the State appealed from pertained to the exclusion
of evidence, and thus should have been appealed at that stage under
paragraph (a) (5). On January 22, 2020, more than four months
after the trial court issued its order denying the State’s Rule 404 (b)
motion, the prosecuting attorney filed for the first time a § 5-7-1 (a)
(5) (B) certification in the trial court, attesting that the appeal was
“not taken for purpose of delay and that the evidence [was]
substantial proof of a material fact in the trial of the case.” She did
so notwithstanding the fact that the State’s initial (premature)
notice of appeal and the three amended notices that followed
invoked § 5-7-1 (a) (3) and not § 5-7-1 (a) (5). Then, on February 10,
2020, in its fourth amended notice of appeal (i.e., on its fifth
attempt), the State clarified that it actually sought to appeal the
trial court’s September 3, 2019 order under § 5-7-1 (a) (5). At that
point, over five months had passed since the trial court issued its
order denying the State’s Rule 404 (b) motion, and the State’s notice
of appeal (which was actually its third amended notice of appeal)
8 invoking § 5-7-1 (a) (3) had been docketed in this Court almost three
weeks earlier.
3. The Requirements Contained in OCGA § 5-7-1 (a) (5) Are
Jurisdictional.
Given the multiple requirements laid out in the text of OCGA
§ 5-7-1 (a) (5), and in light of the State’s multiple erroneous filings
in this case, a critical question is whether the § 5-7-1 (a) (5)
requirements are jurisdictional. For the reasons explained below,
we hold that the requirements set forth in § 5-7-1 (a) (5) — a statute
that permits interlocutory review — are jurisdictional and must be
satisfied to confer jurisdiction on an appellate court.
To properly invoke this Court’s jurisdiction, a party must
comply with the statutory provisions authorizing it to appeal. See
Fulton County v. State, 282 Ga. 570, 570 (651 SE2d 679) (2007)
(noting that “the rules of appellate procedure prescribing the
conditions under which the judgment of the trial court may be
considered appealable” are jurisdictional) (citation and punctuation
omitted). We have emphasized the importance of timeliness with
9 respect to filing notices of appeal, calling it an “absolute
requirement.” See, e.g., Gable v. State, 290 Ga. 81, 82 (720 SE2d
170) (2011) (“[C]ompliance with the statutory deadline for filing a
notice of appeal is an ‘absolute requirement’ to confer jurisdiction on
an appellate court.”). See also Spurlock v. Dept. of Human
Resources, 286 Ga. 512, 525 (690 SE2d 378) (2010) (Nahmias, J.,
concurring specially) (“Our appellate courts have no jurisdiction
over an untimely application.”).
It is also well established that statutory requirements for
interlocutory review are jurisdictional. See Duke v. State, 306 Ga.
171, 171-172 (829 SE2d 348) (2019) (dismissing an application for
interlocutory review because appellant failed to obtain a certificate
of immediate review from the trial court as required by OCGA § 5-
6-34 (b)). See also Islamkhan v. Khan, 299 Ga. 548, 550-552 (787
SE2d 731) (2016) (holding that a notice of appeal filed from an
interlocutory order in a divorce action, without first complying with
the statutory procedures for interlocutory appeals set forth in OCGA
§ 5-6-34 (b), had no legal effect). Moreover, the statutory
10 requirements a party must satisfy to obtain a certificate of
immediate review under OCGA § 5-7-2 are similarly stringent to
those set out in § 5-7-1 (a) (5), and we have repeatedly held that
obtaining a certificate of immediate review within ten days of entry
of the relevant trial court order is a jurisdictional requirement. See,
e.g., Duke, 306 Ga. at 186 (dismissing an application for
interlocutory review when appellant failed to obtain certificate of
immediate review).
Like the different types of appeals discussed above, OCGA § 5-
7-1 (a) (5) “prescrib[es] the conditions under which the judgment of
the court may be considered appealable.” Fulton County, 282 Ga. at
570 (citation and punctuation omitted). See also Spivey v. Nalley,
212 Ga. 810, 810 (96 SE2d 260) (1957) (“The provisions of the law
respecting the procedure to be followed in perfecting appeals to this
court are jurisdictional. . . .”). Given our treatment of notices of
appeal and similar statutory requirements as jurisdictional in other
statutes, and particularly considering our treatment of statutory
requirements for interlocutory appeals as jurisdictional, we see no
11 principled basis for concluding that the requirements set forth in
OCGA § 5-7-1 (a) (5) are anything other than jurisdictional in
nature. As a result, we next make clear exactly what jurisdictional
requirements § 5-7-1 (a) (5) (A) and (B) set forth.
4. What Jurisdictional Requirements Does OCGA § 5-7-1 (a) (5)
Impose?
(a) OCGA § 5-7-1 (a) (5) (A).
At the outset, we note that OCGA § 5-7-1 (a) (5) is focused on
timeliness, and indeed on expedition. Unlike the nine other
paragraphs contained in § 5-7-1 (a), paragraph (a) (5) includes
multiple specific timing requirements, including that the State must
file an appeal from a qualifying trial court order “excluding any
other evidence to be used by the state at trial on any motion filed by
the state or defendant at least 30 days prior to trial and ruled on
prior to the impaneling of a jury or the defendant being put in
jeopardy, whichever occurs first[.]”7 Id. (emphasis supplied). Also
7 As discussed in footnote 3 above, it is unclear whether the motion-filing
deadline was met in this case, but we resolve the appeal on another ground.
12 unlike the other nine paragraphs, which under OCGA § 5-6-38 (a)
allow the State to file a notice of appeal within 30 days of entry of
the relevant trial court order, the State’s appeal under paragraph
(a) (5) may be taken only if the notice of appeal is filed “within two
days of such order[.]”8 Compare OCGA § 5-6-38 (a) with § 5-7-1 (a)
(5) (A). We therefore conclude that the two-day deadline for filing a
notice of appeal, which is expressly set forth in the text of § 5-7-1 (a)
(5) (A), is a jurisdictional requirement the State must satisfy to
comply with § 5-7-1 (a) (5).
(b) OCGA § 5-7-1 (a) (5) (B).
An appeal under OCGA § 5-7-1 (a) (5) is also predicated on a
requirement contained in paragraph (a) (5) (B). See § 5-7-1 (a) (5)
(an appeal may be taken from a qualifying trial court order “if. . . (A)
. . . the notice of appeal . . . is filed within two days of such order . . .
and” (B) the State makes the proper certification) (emphasis
8 The text of OCGA § 5-7-1 (a) (5) (A) provides that notices of appeal “filed
pursuant to this paragraph” must be filed within two days of the relevant trial court order. (Emphasis supplied.) Viewed as a whole, the context of the statute makes clear that “this paragraph” references only § 5-7-1 (a) (5) (A) and not the entirety of § 5-7-1 (a). 13 supplied). Specifically, the prosecuting attorney must certify to the
trial court that any appeal under that paragraph “is not taken for
purpose of delay and that the evidence is a substantial proof of a
material fact in the proceeding[.]” OCGA § 5-7-1 (a) (5) (B). We hold
that, like the two-day notice of appeal requirement set forth in § 5-
7-1 (a) (5) (A), the certification requirement set forth in § 5-7-1 (a)
(5) (B) is also jurisdictional.
Notably, however, the text of paragraph (a) (5) (B) — unlike the
text of paragraph (a) (5) (A) — does not impose an express deadline
for the State to make that certification. That raises the question of
whether the State’s paragraph (a) (5) (B) certification must be made
by the same two-day deadline required of a paragraph (a) (5) (A)
notice of appeal. For the reasons explained below, we hold that the
paragraph (a) (5) (B) certification must be filed before or with the
paragraph (a) (5) (A) notice of appeal to satisfy OCGA § 5-7-1 (a) (5)
and thus to confer jurisdiction on an appellate court.
We recognize that on one hand, the text of OCGA § 5-7-1 (a) (5)
(B) does not itself provide a deadline and does not explicitly
14 incorporate the deadline set forth in paragraph (a) (5) (A). Given
paragraph (a) (5) (A)’s express reference to a two-day deadline, the
absence of a deadline in paragraph (a) (5) (B) could point toward the
conclusion that the State faces no deadline at all for filing the
certification required under paragraph (a) (5) (A). See OCGA § 5-7-
6 (“This chapter shall be liberally construed to effectuate the
purposes in this chapter.”). But viewing the statute as a whole, and
in light of the relevant background law, we conclude that is not so.
First, the text of OCGA § 5-7-1 (a) (5) provides indications that
the paragraph (a) (5) (B) certification must be filed with or before
the paragraph (a) (5) (A) notice of appeal. That is because OCGA
§ 5-7-1 (a) authorizes an appeal to “be taken” when certain conditions
are met, and paragraph (a) (5) (B) specifically authorizes an appeal
only if the “prosecuting attorney certifies to the trial court that such
an appeal is not taken for purpose of delay and that the evidence is
a substantial proof of a material fact in the proceeding[.]” (Emphasis
supplied.) In ordinary legal parlance, an appeal is “taken” when the
notice of appeal is filed. See OCGA § 5-6-37 (“[A]n appeal may be
15 taken to the Supreme Court or the Court of Appeals by filing with
the clerk of the court . . . a notice of appeal.”); State v. Andrade, 298
Ga. 464, 465 n.3 (782 SE2d 665) (2016) (noting that an appeal is
“taken” by filing a notice of appeal). See also Fed. Deposit Ins. Corp.
v. Loudermilk, 305 Ga. 558, 562 (826 SE2d 116) (2019) (“[A] statute
draws its meaning . . . from its text.”) (citation and punctuation
omitted); Deal v. Coleman, 294 Ga. 170, 172 (751 SE2d 337) (2013)
(in interpreting a statute, “we must afford the statutory text its
‘plain and ordinary meaning’”) (citation omitted). It would be odd to
say that the paragraph (a) (5) (B) requirement was satisfied when
the certification was filed after the notice of appeal; in such a case,
the appeal would have already been taken, which ignores the
present-tense phrase “is not taken” contained in paragraph (a) (5)
(B). And because paragraph (a) (5) (B) requires a prosecutor to
certify that any (a) (5) appeal “is not taken for purpose of delay,” it
would similarly be odd to make such a certification after the
paragraph (a) (5) (A) notice of appeal was filed — i.e., after the
appeal was taken.
16 This conclusion comports with other aspects of the text and
context of OCGA § 5-7-1 (a) (5), which — when viewed as a whole —
demonstrate that paragraphs (a) (5) (A) and (B) are structured to
promote swift review of the State’s interlocutory appeals challenging
the exclusion of evidence. See Loudermilk, 305 Ga. at 562
(explaining that “‘[f]or context, we may look to other provisions of
the same statute, the structure and history of the whole statute, and
. . . other law’”) (citation omitted). Those textual indicators include
the not-less-than-thirty-days-before-trial timeframe for any motion
the ruling on which serves as a predicate for an appeal under § 5-7-
1 (a) (5); the two-day deadline (as opposed to the typical thirty days)
under paragraph (a) (5) (A) for filing a notice of appeal; and the
requirement under paragraph (a) (5) (B) that the prosecuting
attorney certify that the appeal “is not taken for purpose of delay[.]”
Second, our interpretation accounts for the paragraph (a) (5)
(B) requirement that certification be made “to the trial court” — not
to the appellate court. This statutory language suggests that the
certification should be made while the trial court has jurisdiction
17 over the case, rather than after a notice of appeal has been filed and
the trial court is potentially divested of its jurisdiction.9
In the same vein, the record transmitted to the appellate court
after a notice of appeal is filed normally includes only those filings
made before the notice of appeal is filed. See OCGA § 5-6-37
(providing that as part of the notice of appeal, an appellant must
designate which portions of the record are to be omitted and state
whether “any transcript of evidence and proceedings” is to be
transmitted as part of the record); McHugh Fuller Law Group, PLLC
v. PruittHealth-Toccoa, LLC, 297 Ga. 94, 98 (772 SE2d 660) (2015)
(explaining that a party may designate for inclusion in the appellate
record “any portion of the trial court clerk’s record . . . that was filed
in the trial court as of the time the notice of appeal was filed”)
9 To that end, the filing of a notice of appeal by the State in a criminal
case typically acts as a supersedeas that divests the trial court of jurisdiction over the matter being appealed. See OCGA § 5-6-45 (a) (providing that the notice of appeal in a criminal case “shall serve as supersedeas in all cases where a sentence of death has been imposed or where the defendant is admitted to bail”). See also Chambers v. State, 262 Ga. 200, 201-202 (415 SE2d 643) (1992) (holding that the State’s appeal of a suppression order deprived the trial court of jurisdiction to try the accused and rendered his resulting convictions for armed robbery and other crimes void). 18 (emphasis supplied). And once the record is transmitted, the
appellate court may act on the appeal. A paragraph (a) (5) (B)
certification must be part of the record for an appellate court to
confirm its jurisdiction over an appeal made under § 5-7-1 (a) (5),
but for the paragraph (a) (5) (B) certification to even appear in the
record considered by the appellate court — at least under
circumstances where the certification was made after the notice of
appeal was filed — the State would have to move the trial or
appellate court to supplement the record, see OCGA §§ 5-6-41 (f); 5-
6-48 (d), and would have to succeed in securing supplementation
before the appellate court dismissed the appeal for lack of
jurisdiction. We cannot say that the General Assembly meant for
the appellate courts’ jurisdiction over appeals taken under § 5-7-1
(a) (5) to turn on the interplay between the happenstance timing of
the State’s paragraph (a) (5) (B) certification, the record transmittal,
and the appellate court’s decision on an appeal. Indeed, allowing
such whim to control the appellate process could easily result in the
very delay that paragraph (a) (5) (B) is designed to protect against.
19 Finally, we again note that paragraph (a) (5) (B) requires a
prosecuting attorney to certify that any appeal taken under § 5-7-1
(a) (5) “is not taken for purpose of delay and that the evidence is a
substantial proof of a material fact in the proceeding[.]” Given that
the State must already decide whether to seek an appeal under § 5-
7-1 (a) (5) within two days of entry of the trial court order at issue
(and presumably evaluate its potential appeal before and during
that expedited timeframe), and that paragraph (a) (5) (B) merely
asks the prosecuting attorney to make a one-sentence certification
about facts squarely within his or her knowledge at the time the
State’s notice of appeal is filed, it would be inconsistent to conclude
that a paragraph (a) (5) (B) certification made after a paragraph (a)
(5) (A) notice of appeal is filed could accurately certify that the
appeal is not being taken for purposes of delay.
5. The State Failed to Comply With OCGA § 5-7-1 (a) (5) Here.
Pretermitting whether the trial court’s order was a ruling on a
motion filed more than 30 days before trial, see footnote 3 above, the
State satisfied OCGA § 5-7-1 (a) (5) (A) by filing a timely notice of
20 appeal. But both paragraphs (a) (5) (A) and (a) (5) (B) must be
satisfied for the State to comply with § 5-7-1 (a). And given that the
State — which filed the prosecutor’s certification with the trial court
more than four months after entry of the trial court order the State
sought to appeal — has not satisfied the paragraph (a) (5) (B)
requirement here, we lack jurisdiction over this appeal and dismiss
it accordingly.
Appeal dismissed. All the Justices concur, except Blackwell, J., who concurs in Divisions 1, 2, 3, 4 (a), and 5, and in the judgment.
Decided October 5, 2020.
Murder. Fulton Superior Court. Before Judge Schwall. Paul L. Howard, Jr., District Attorney, Lauren A. Travis, Stephany J. Luttrell, Richard B. Caplan, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellant. Maxwell G. Schardt, for appellee.