319 Ga. 123 FINAL COPY
S24A0174. THOMAS v. THE STATE.
BETHEL, Justice.
This Court granted the interlocutory application of Tyler Jarel
Thomas, who timely sought review of a trial court order that vacated
its earlier grant of his motion to suppress. Thomas argues that the
end-of-term rule, which we have held imposes a term-based time
restriction on a trial court’s authority over its interlocutory orders
in criminal cases, should have barred the trial court’s
reconsideration, even though a new trial had been granted in his
case. But for the reasons explained below, we conclude that
Thomas’s argument fails, so we affirm.
1. In February 2014, Thomas was indicted for the murder of
Ashley Brown. Before his indictment, law enforcement executed a
court order for Thomas’s phone records, including cell site location
information (“CSLI”). At the time investigators obtained those
records, access to them was governed by federal and state statutes. In 2014, while some federal courts held differently, “no appellate
precedent binding in Georgia courts held that a request or demand
by a governmental entity to a cell phone service provider that the
provider produce its records related to a customer’s account
constituted a search under the Fourth Amendment” to the United
States Constitution. Lofton v. State, 310 Ga. 770, 776 (2) (854 SE2d
690) (2021). In other words, at that time in Georgia courts, a court
order was legally sufficient to obtain records like the ones at issue
here; a warrant was unnecessary.1
Nonetheless, Thomas moved to suppress the CSLI in June
2014, arguing that it was obtained in violation of the Fourth
Amendment. The trial court agreed with Thomas and granted his
motion, relying in part upon United States v. Davis, 754 F3d 1205
(11th Cir. 2014) (“Davis I”), an Eleventh Circuit decision that held a
1 This changed with the United States Supreme Court’s decision in Carpenter v. United States, 585 U. S. 296 (138 SCt 2206, 201 LE2d 507) (2018), which held that compelling a cell phone service provider to turn over a user’s historical CSLI of seven days or more constitutes a search under the Fourth Amendment and that, before such a search, “the Government’s obligation is a familiar one — get a warrant.” Id. at 317 (IV). 2 warrant was necessary to obtain CSLI. But a year after it decided
Davis I, the Eleventh Circuit reconsidered the case, reversing its
position and holding that the Fourth Amendment to the United
States Constitution did not require a warrant to obtain CSLI. See
United States v. Davis, 785 F3d 498 (11th Cir. 2015) (deciding that
a court order was sufficient to obtain CSLI from a service provider)
(“Davis II”).2
In May 2017, the day that voir dire was scheduled to begin, the
State asked the trial court to reconsider its suppression order in
light of the Eleventh Circuit’s reconsideration of Davis I. Thomas
argued that the end-of-term rule prohibited the trial court’s
reconsideration of the suppression order, even though the decisional
law upon which the previous order relied had changed. While
recognizing a change in the law underlying the suppression order,
the trial court opined that the end-of-term rule, as articulated in
Moon v. State, 287 Ga. 304 (696 SE2d 55) (2010), divested it of the
2 Neither Davis I nor Davis II was binding authority on the trial court,
but the court looked to Davis I as “instructive” when granting Thomas’s motion to suppress. 3 authority to reconsider its own prior interlocutory ruling.
At trial, the jury found Thomas guilty of malice murder and
related crimes. He timely filed a motion for new trial, which was
granted by the trial court. We affirmed the grant of a new trial on
the grounds that the State had committed a Brady violation, see
Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963),
by failing to disclose a deal with a witness. See State v. Thomas, 311
Ga. 407 (858 SE2d 52) (2021) (“Thomas I”). On appeal, the State did
not challenge, and this Court did not address, the trial court’s ruling
suppressing the CSLI evidence.
Upon remand to the trial court, the State again moved for
reconsideration of the CSLI suppression order. Thomas, meanwhile,
reprised his end-of-term rule argument. But this time, the trial court
agreed with the State,3 vacated the earlier suppression order, and
held that the CSLI could be tendered at trial. In so holding, the trial
court expressly rejected Thomas’s argument based on the end-of-
3 By our count, the motion to reconsider was granted by the third judge
overseeing this case; the first judge suppressed the evidence in 2014, and the second judge declined reconsideration before the 2017 trial. 4 term rule, explaining that reconsideration of the evidentiary ruling
was proper because “[t]here is no final judgment in this case,”
“questions of suppression remain ripe and open for reconsideration,”
“no appellate court has opined on the question of the admissibility
of the CSLI in this case,” and the CSLI issue “has remained within
the breast of the trial court since the inception of this case.” This
appeal followed.
2. On appeal, Thomas argues, as he did below, that the end-of-
term rule should have prohibited the trial court’s reconsideration of
its order on his motion to suppress. Subject to certain exceptions,
which are not applicable here, we have said that the end-of-term
rule limits “a trial court’s inherent power to revoke interlocutory
rulings” in criminal cases to the end of the term in which the ruling
was entered.4 Kelly v. State, 315 Ga. 444, 447 (2) (883 SE2d 363)
4 The parties, the trial court, and some case law occasionally conflate the
end-of-term rule and the law of the case doctrine. The two are often present in the same case and have related concepts, but they are distinct. The law of the case doctrine provides that appellate rulings are binding in all subsequent proceedings. See OCGA § 9-11-60 (h) (“[A]ny ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings
5 (2023) (quoting Moon, 287 Ga. at 304). Because the order on the
motion to suppress in this case was reconsidered several years after
the end of the term in which it was granted, Thomas contends that
the trial court’s reconsideration was improper. For its part, the State
argues that the reconsideration was not improper, because there has
been no final judgment in this case and we have also said that trial
courts “retain[ ] broad discretion over interlocutory evidentiary
rulings which may be modified at any time until entry of final
judgment,” not just until the end of the term in which they were
entered. Ritter v. State, 272 Ga. 551, 553 (2) (532 SE2d 692) (2000)
(holding that a trial court did not err by reconsidering an out-of-term
interlocutory ruling after the declaration of a mistrial) (emphasis
supplied). Thus, the issue before us is whether, after a new trial has
been granted in a criminal case, a trial court is prohibited from
in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.”). While the law of the case doctrine is found in the Civil Practice Act, we have held that it applies in criminal cases, too. See Roulain v. Martin, 266 Ga. 353, 354 (1) (466 SE2d 837) (1996). But the law of the case doctrine does not apply here, because no appellate court has ruled on the disputed motion to suppress. 6 reconsidering an interlocutory ruling that it entered in an earlier
term.
In civil cases, the end-of-term rule has been explicitly curtailed
by statute. See OCGA § 9-11-6 (c) (“The continued existence or
expiration of a term of court in no way affects the power of a court
to do any act or take any proceeding in any civil action which has
been pending before it, except as otherwise specifically provided by
law.”). Compare OCGA § 15-1-3 (6)-(7) (“Every court has power . . .
[t]o amend and control its processes and orders, so as to make them
conformable to law and justice . . . before final judgment.”).5 But we
5 The State contends that OCGA § 15-1-3 (6)-(7), while not abrogating
the common law end-of-term rule as explicitly as in the Civil Practice Act, implicitly abolished the rule’s application to interlocutory orders in criminal cases because it grants courts the authority to “amend and control” their orders “before final judgment,” as opposed to limiting that authority to the term in which an order was entered. Id. But see Crowell v. Crowell, 191 Ga. 36 (11 SE2d 190) (1940). Indeed, if that is an accurate reading of the statute, our persistent application of this common law rule has been in error, because we are only bound to follow the common law if it has not been superseded by statute. See OCGA § 1-1-10 (c) (1); Moon, 287 Ga. at 305 (1) (Nahmias, J., concurring) (explaining that the end-of-term rule, “which comes from the pre- Revolution English common law, seems outdated, but this Court probably lacks the authority to change it,” because our Code requires us to follow the English common law unless otherwise displaced by law). If the State is correct, OCGA § 15-1-3 (6)-(7) permits trial courts to revise their own rulings, even those rendered in an earlier term, as long as that revision occurs before final
7 have continued applying the end-of-term rule in criminal cases, even
to interlocutory orders. See, e.g., Moon, 287 Ga. at 304; Hipp v. State,
293 Ga. 415, 417 (746 SE2d 95) (2013).
We have consistently held, however, that when a new trial has
been granted, trial courts are not prohibited from reconsidering
their previous orders. See, e.g., Smith v. State, 292 Ga. 620, 622 (3)
(740 SE2d 158) (2013) (citing Ritter, 272 Ga. at 553 (2)) (holding
that, upon remand, a trial court is not “required to rehear all pretrial
motions as though they had never before been considered,” but that
it has the authority to do so); Salisbury v. Grimes, 223 Ga. 776, 778
(2) (158 SE2d 412) (1967) (“When appellant [is] granted a new trial,
it wipe[s] the slate clean as if no previous conviction and sentence
had existed.”). Under the reasoning of Ritter and Smith, therefore,
because the final judgment in this case was vacated by the grant of
a new trial, the trial court may reconsider rulings from earlier
terms.
judgment. But because this case may be resolved by reference to existing precedent, we do not reach this issue. 8 Thomas resists this conclusion, arguing that the end-of-term
rule’s application should not be limited by the grant of a new trial.
Rather, he would have us hold that, upon remand following our
decision in Thomas I, his case reverted to the posture it occupied the
moment before his trial began, with all prior rulings intact and the
trial court lacking authority to reassess them. Under Thomas’s view
of the end-of-term rule, the trial court would be prohibited from
revisiting its earlier suppression ruling because that ruling was
entered years before its reconsideration. In support of this
contention, Thomas asserts that Ritter and Smith are unsound and
should be considered with “caution.” He does not argue that we
should overrule those cases; instead, he asserts that Ritter’s
precedential value should be “limited” because, he says, the cases it
relies upon do not support its ultimate conclusion. Thomas also
argues that Ritter should not be followed because of its apparent
tension with Moon, Ritter permitting reconsideration of
interlocutory rulings before entry of final judgment, see Ritter, 272
Ga. at 553 (2), and Moon broadly holding that “a trial court’s
9 inherent power to revoke interlocutory rulings . . . ceases with the
end of the term,” Moon, 287 Ga. at 304.
Thomas’s criticism of the decisional law upon which Ritter
relied — specifically, Tucker v. State, 231 Ga. App. 210 (498 SE2d
774) (1998), and Bradley v. Tattnall Bank, 170 Ga. App. 821 (318
SE2d 657) (1984) — is unfounded. Tucker principally concerned the
evidentiary-posture exception to the end-of-term rule,6 and Thomas
argues that Tucker’s applicability should be limited to that
exception. But Tucker’s broad language was derived from a Court of
Appeals decision that contemplated much more than the
evidentiary-posture exception. See State v. Hall, 229 Ga. App. 194,
197 (2) (493 SE2d 718) (1997) (holding that “[t]he denial of a pre-
6 We have held that this exception to the end-of-term rule “allows after-
term reconsideration, at least of constitutional issues, where the ‘evidentiary posture’ of the issue has changed.” Moon, 287 Ga. at 309 (2) (Nahmias, J., concurring). There is also an evidentiary posture exception to the law of the case doctrine. See, e.g., Williams v. State, 277 Ga. App. 841 (627 SE2d 808) (2006); Collins v. Carr, 116 Ga. 39, 40 (42 SE 373) (1902). In their briefing, the parties confuse the exceptions to these two rules, citing cases that apply both. We have not had occasion to examine the application of the evidentiary-posture exception to the end-of-term rule in the context of a substantive change in evidentiary decisional law and because this case can be disposed of on other grounds, we do not do so here. 10 trial suppression motion, an interlocutory evidentiary ruling, is
subject to review by the presiding judge [on his own motion]”).
Thomas takes issue with Bradley, meanwhile, because it was a civil
case, not a criminal case like Ritter and the one at hand. But as we
pointed out in Ritter, the general legal principle espoused in Bradley
has been extended to criminal cases, too. See Ritter, 272 Ga. at 553
(2) n.3. Thomas’s objection to these cases on the grounds that they
do not support Ritter’s conclusion, therefore, is meritless.
Any arguable tension between Ritter and Moon may be
resolved by examining their differing procedural postures. In Moon,
no new trial had been granted. But new trials had been granted in
Ritter and Smith, as in this case, materially distinguishing them
from Moon. Importantly, Thomas has not directed us to a case in a
similar procedural posture where Moon was applied to curtail a trial
court’s plenary authority over its own evidentiary rulings. Thus, the
procedural posture of this case being more similar to Ritter and
Smith than to Moon and its progeny, we conclude that the Ritter line
of cases controls the analysis, and that the trial court did not err by
11 reconsidering its earlier order on Thomas’s motion to suppress.7
Judgment affirmed. All the Justices concur.
BETHEL, Justice, concurring.
I, of course, concur in the majority opinion. But I write
separately to share a few observations about the end-of-term rule
that we did not consider above. Where our Constitution and Code
are otherwise silent, Georgians have elected to be governed by the
common law of England as it existed on May 14, 1776. See OCGA §
1-1-10 (c) (1); Lathrop v. Deal, 301 Ga. 408, 412 (II) (A) n.9 (801 SE2d
867) (2017) (“In 1784, our General Assembly adopted the statutes
and common law of England as of May 14, 1776, except to the extent
that they were displaced by our own constitutional or statutory law.
7 As a practical matter, mechanical application of Moon’s common-law
interpretation in the procedural posture present here could create logistical impossibilities upon remand. For example, such an inflexible rule could force trial courts to adhere to the first trial’s scheduling order, even if that would require jury selection to begin the day that the court received the remittitur. Or, as in this case, it could bind a trial court to an erroneous ruling excluding evidence with no legal basis for that exclusion. In the inverse, strict adherence to Moon’s rule could even convince a trial court to allow the admission of evidence in violation of the defendant’s constitutional or statutory rights. 12 That adoption of English statutory and common law remains in force
today.” (citation omitted)). The end-of-term rule is a creature of that
common law. However, our prior iterations of the rule might have
caused us to apply it in a manner that is neither contemplated nor
compelled by the common law.
Where we have held that the end-of-term rule, as articulated
by the common law of England, prohibited judges from reconsidering
interlocutory rulings outside of the term in which they were entered,
I fear that we may have erred. In the appropriate case, I would
welcome the opportunity to revisit the actual metes and bounds of
the historical end-of-term rule. For the reasons outlined in the
opinion of the Court, this is not that case. But if and when we are
called upon to revisit the end-of-term rule, our analysis must begin
with an examination of English common law texts from the relevant
time period.
The end-of-term rule has existed in some form for centuries,
and it appears to find its origin in the practice of enrolling all final
judgments at the end of a term. As Blackstone explained, after trial
13 and verdict, “[i]f judgment [was] not by some [proper] means
arrested within the first four days of the next term after the trial, it
[was] then to be entered on the roll or record.” 3 William Blackstone,
Commentaries on the Laws of England 395 (1st ed. 1768)
(“Blackstone’s Commentaries”). See also Francis Bacon, Ordinances
Made by the Right Honourable Sir Francis Bacon (1642), reprinted
in Lord Bacon’s Law Tracts 287 (2d ed. 1741) (“Bacon’s Law Tracts”)
(explaining that “within two or three days after every term,” a trial
court’s final decrees were “granted at the rolls”). A final judgment
was eligible for enrollment once “all issues [had been] tried and
settled, [ ] all references to the matter ended,” and the judgment had
been signed by the judge or chancellor who oversaw the case.
Blackstone’s Commentaries 453-454. See also Bissell Carpet-
Sweeper Co. v. Goshen Sweeper Co., 72 F. 545, 554 (6th Cir. 1896)
(“Under the English practice, a decree was not in strictness regarded
as final until enrolled, because until then it was liable to be altered
by the court itself,” but after “it was regarded as a final decree,” it
was “entitled as of course to enrollment.”).
14 Once a final judgment was enrolled and the term had ended,
the trial court no longer had the authority to modify that judgment.
See Short v. Kellogg & Co., 10 Ga. 180, 182 (1851) (explaining the
“English rule” that “[a]t the Common Law, no judgment was
amendable after the term at which it was entered”); Winslow v.
Staab, 242 F. 426, 428 (2d Cir. 1917) (“The technical rule of the
English courts is that it is the enrollment of the decree which places
it beyond the control of the court.”). In courts of chancery, for
example, after a term had ended and a final decree had been
enrolled, it could not be “reversed, altered, or explained . . . but upon
bill of review” to a higher court. Bacon’s Law Tracts at 279. See also
Blackstone’s Commentaries at 453 (explaining that after a decree
was “signed and enrolled, it [could] not be reheard or rectified, but
by a bill of review, or by appeal to the house of lords”). And a higher
court’s intervention was necessary because, after the end of the term
in which a final judgment was entered, the trial court no longer
enjoyed jurisdiction over the case. See Bronson v. Schulten, 104 U.
S. 410, 417 (26 LE 797) (1881) (explaining that the common law end-
15 of-term rule “relates to the power of the courts, and not to the mode
of procedure,” and the relevant question is “whether there exists in
the court the authority to . . . modify its final judgments after the
term at which they were rendered”) (emphasis supplied).
However, interlocutory orders were treated differently. When
an order was “an interlocutory[,] not a final[,] one, there [were]
neither technical nor substantial ground[s] for applying to it the
rules pertaining to a bill of review,” including the term-based
limitations on reconsideration. John Simmons Co. v. Grier Bros. Co.,
258 U. S. 82, 90-91 (42 SCt 196, 66 LE 475) (1922). See also First
Nat. Bank of Cincinnati v. Flershem, 290 U. S. 504, 522 (54 SCt 298,
78 LE 465) (1934) (“[A] bill of review will not lie to review an
interlocutory order.”). An interlocutory order only required “a
petition for rehearing,” and because the order underlying such a
petition was merely “interlocutory, the court at any time before final
decree [could] modify or rescind it.” John Simmons Co., 258 U. S. at
88-89. See also Kenon’s Executors v. Williamson, 2 N. C. 350, 352
(1796) (holding that at common law, a “bill of review [would lie] only
16 upon a final decree enrolled,” and that “[b]efore it [was] finally
pronounced and recorded, any mistakes [could] be rectified by a
rehearing”);8 Ogle v. Lee, 6 U. S. 33 (2 LE 198) (1804) (“A court may
at any time reverse an interlocutory decree.”); Welch v. Kingsland,
89 N. C. 179, 181 (1883) (reversing a trial judge who had refused to
modify an interlocutory order entered in an earlier term “on the
ground of a supposed want of power in the judge,” because “[a]n
interlocutory order . . . is always under the control of the court
during the pending of the action” (punctuation omitted)).
In simpler terms, the common law seemed to treat the end-of-
8 North Carolina cases may have particular relevance because that state,
too, follows the common law of England as it existed in 1776, unless otherwise displaced by law. See Hall v. Post, 323 N. C. 259, 264 (372 SE2d 711) (1988) (“Unless modified or repealed by the General Assembly or this Court, the ‘common law’ to be applied is the common law of England as it existed when North Carolina became a sovereign State in 1776.”). As we have observed, while states “may place a different construction upon a principle of common law, that does not change the law.” Slaton v. Hall, 168 Ga. 710, 716 (148 SE 741) (1929). Because there is only one body of common law, there is “still only one right construction” of that law. Id. See also Coon v. Med. Center, 335 Ga. App. 278 (780 SE2d 118) (2015) (McMillian, J., concurring specially). And while our Court’s application of the common law is controlling in Georgia, “[i]f this Court is persuaded that the understanding of the relevant principle of the common law offered by the courts of [another] state (or of other common-law courts, for that matter) is superior to our own, we may adopt that position and apply it to the case at hand.” Coon v. Med. Center, 300 Ga. 722, 730 (2) (797 SE2d 828) (2017). 17 term rule as a jurisdictional limitation on trial courts. But I have
found no suggestion that, as of May 14, 1776, trial courts in England
were under a similar jurisdictional limitation with respect to their
own interlocutory orders. Indeed, the authority I have been able to
locate suggests the opposite. See, e.g., Mills v. Banks, 24 Eng. Rep.
943 (3 P. Wms. 3) (1724) (holding in equity that a trial court had
discretion to reconsider interlocutory decree entered eighteen years
earlier); Cavil v. Burnaford, 97 Eng. Rep. 452 (1 Burr. 569, 2 Keny.
290) (1758) (holding that the “power to set aside interlocutory
judgments, seems incident to justice,” and “[t]here is no authority
nor even dictum, to the contrary: nor is there any reason why [trial
courts] should not have such a power”).
Other authorities, including this Court’s early decisions, also
cast doubt on our more recent articulations of the end-of-term rule.
See, e.g., Langford v. Comms. Of Wilkinson County, 75 Ga. 502, 503
(1885) (holding that, because until “final judgment in the superior
court, the cause was in fieri,” the court could “alter an interlocutory
opinion . . . before final disposition”); Wakefield v. Moore, 65 Ga. 268,
18 270 (1880) (concerning judgments of contempt, “the court may
review and annul its [contempt judgment] at the same or at a
subsequent term”); W. P. Love & Co. v. Young, 69 N. C. 65, 66-67
(1873) (explaining that no “rule of law [forbade] his Honor, at Spring
Term, 1873, from reconsidering an interlocutory order made at Fall
Term, 1872,” and that if the judge “became satisfied, that . . . the
case was not properly constituted before him, it was his duty to
dismiss the proceeding, notwithstanding he at Fall Term, 1872,
failed to take the same view of the case”); United States v. 111,000
Acres of Land in Polk and Highlands Counties, Florida, 155 F2d 683,
685 (3) (5th Cir. 1946) (explaining that the common law “was well
settled that, while during the term of the court all its judgments are
‘in the breast of the court’ and subject to its control, after the term
ends the final judgments, as distinguished from interlocutory ones,
cannot be altered”).
So, what precipitated our apparent deviation from this
seemingly settled law? Upon review of our opinions, I believe the
rule as we have articulated it began to take shape in McCandless v.
19 Conley, 115 Ga. 48, 50-51 (41 SE 256) (1902). There, we broadly
stated that “[t]he mere fact that a cause is still pending, no final
judgment on the merits having been rendered, does not preserve in
the court power to revoke interlocutory rulings made at a term
which has passed.” Id. To support this iteration of the end-of-term
rule, we cited Henry Campbell Black’s Treatise on the Law of
Judgments (1891) (“Black’s Treatise”); McCaulla v. Murphy, 86 Ga.
475, 481 (12 SE 655) (1890); Dyson v. Southern R. Co., 113 Ga. 327,
330 (38 SE 749) (1901); Watkins v. Brizendine, 111 Ga. 458 (36 SE
807) (1900); and Cralle v. Cralle, 84 Va. 198 (6 SE 12) (1887). But I
cannot make out how any of those authorities support the
proposition for which we cited them.
In support of our holding in McCandless, we cited Black’s
Treatise, which said, among other things, that “[d]uring the term
the record is said to be in the breast of the judge; after it is over it is
upon the roll.” McCandless, 115 Ga. at 51 (quoting Black’s Treatise
at §§ 153, 154, and 157). But, as explained at length above, only final
judgments that were “upon the roll” carried term-based time limits
20 on their reconsideration.9 Moreover, § 308 of the very same volume
of Black’s Treatise explicitly exempts interlocutory orders from end-
of-term finality. See Black’s Treatise at § 308 (explaining that “[a]n
interlocutory judgment or decree, made in the progress of a cause, is
always under the control of the court until final decision of the suit,
and it may be modified or rescinded, upon sufficient grounds shown,
at any time before final judgment, though it be after the term in
which the interlocutory sentence was given”).10
9 Indeed, not long after McCandless, we recognized that, while a certain
order “may be in its nature a judgment, it belongs to that class of judgments usually designated as interlocutory orders, and has none of the elements of a final judgment.” Field v. Peel, 122 Ga. 503, 505-506 (50 SE 346) (1905). We even explained that “[t]he entry of a final judgment terminates [a court’s] jurisdiction of the controversy, but an entry of an interlocutory order does not have this effect, and such an order is subject to be vacated [ ] whenever sufficient reason is shown therefor.” Id. at 506. 10 Other prominent legal scholars around the time of McCandless echoed
Black’s view. See, e.g., 1 Abraham Clark Freeman, Treatise on the Law of Judgments 391-392, § 200 (5th ed. 1925) (“Any merely interlocutory order or judgment may be vacated at a term subsequent to that at which it was entered. The general rule limiting the power to modify or vacate, to the term, applies only to final judgments and decrees and hence does not prevent such action where only a written opinion has been filed which is apparently not intended as a final decree.”); 17 Am. & English Encyclopaedia of Law 817-818 (2d ed. 1900) (The “well established” and “general” rule prohibiting amendment of judgments after the expiration of the term at which they were rendered “applies only to final judgments, and has no application to a judgment or order which does not put an end to the proceedings, but leaves them in fieri, as in
21 Neither do the cases that we cited support the proposition that
trial courts are bound by their own interlocutory orders after term-
end. Watkins did not address interlocutory orders at all; it concerned
the reinstatement of a case after a final judgment had been entered
in an earlier term and, for that reason, seems to fit easily into the
category of “enrolled” final decisions for purposes of the common law
end-of-term rule. See 111 Ga. at 460. Cralle applied the law of the
case doctrine, not the end-of-term rule, and was therefore irrelevant
to the issues under consideration in McCandless. See 84 Va. at 198
(holding that a trial court could not reconsider part of a judgment
that had been affirmed on appeal). Dyson, meanwhile, concerned
amendments to the pleadings in a situation unrelated to terms of
court. See 113 Ga. at 330. And McCaulla construed a statutory
deadline for filing a demurrer. See 86 Ga. at 481.
In later cases where we have discussed the end-of-term rule,
we have uncritically cited McCandless as standing for the common
the case of an interlocutory judgment[.]”); John Lilly, Practical Register: Or a General Abridgement of the Law 70 (2d ed. 1735) (explaining that judges were empowered to “amend a Judgment, though of another Term”). 22 law proposition that interlocutory orders cannot be modified outside
of the term in which they were entered, failing to grapple with the
common law history or McCandless’s misplaced reliance upon its
cited authorities.11 See, e.g., Lemcon USA Corp. v. Icon Technology
Consulting, 301 Ga. 888 (804 SE2d 347) (2017) (citing Moon v. State,
287 Ga. 304, 305 (696 SE2d 55) (2010) (citing McCandless and
Black’s Treatise as supporting the proposition that at common law,
interlocutory orders could not be modified after term-end)). But our
Code binds us to follow the English common law, not our own
potentially errant interpretation of that common law. Thus, if in a
future case where the issue is properly presented, we determine that
our understanding of the common law end-of-term rule is incorrect,
we will be compelled to engage in a stare decisis analysis to
determine whether that incorrect articulation must continue. Today
is not that day.
11 Two notable exceptions to this trend include Ritter v. State, 272 Ga.
551, 553 (2) (532 SE2d 692) (2000), and Smith v. State, 292 Ga. 620, 622 (3) (740 SE2d 158) (2013), both of which viewed the common law as allowing trial courts to modify their interlocutory rulings and orders before final judgment. 23 Decided May 29, 2024.
Murder. Fulton Superior Court. Before Judge McBurney.
Howard J. Weintraub, Benjamin B. Alper; Shein Brandenburg
& Schrope, Elizabeth A. Brandenburg, for appellant.
Fani T. Willis, District Attorney, Michael S. Carlson, Kevin C.
Armstrong, Jeffrey M. Hawkins, Assistant District Attorneys;
Christopher M. Carr, Attorney General, Beth A. Burton, Deputy
Attorney General, Meghan H. Hill, Clint C. Malcolm, Senior
Assistant Attorneys General, for appellee.