NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: January 18, 2023
S22A0979. KELLY v. THE STATE.
WARREN, Justice.
After Jeremiah Kelly was convicted of murder, the trial court
granted his motion for new trial, but gave the State an opportunity
to request a rehearing within 30 days. The State filed such a request
within that time, but did so after the expiration of the term of court
in which the order granting a new trial was entered. Nevertheless,
the trial court purported to enter a denial of Kelly’s motion for new
trial. Kelly appeals from the trial court’s order denying his motion
for new trial. Because the trial court did not have jurisdiction to
consider the State’s out-of-term request for rehearing or to enter an
order denying the motion for new trial, we vacate that order and
remand the case for further proceedings pursuant to the trial court’s
initial order granting Kelly a new trial.
1. Kelly was convicted of felony murder and other crimes in
connection with the shooting death of Anthony Dewayne King and
the aggravated assaults of Anthony Davis and Travis Davis. 1
Through trial counsel, Kelly timely filed a motion for new trial on
April 8, 2015.2 On March 7, 2019, Kelly filed a motion to disqualify
1 The crimes occurred on August 3, 2012. On October 30, 2012, a
Richmond County grand jury indicted Kelly and William Henry Clark for
malice murder, felony murder predicated on aggravated assault, two counts of
aggravated assault, and three counts of possession of a firearm during the
commission of a crime. Kelly was tried separately from March 16 to 20, 2015,
and the jury found him not guilty of malice murder but guilty of all the other
crimes with which he was charged. On March 23, 2015, the trial court
sentenced Kelly to serve life in prison without the possibility of parole for
malice murder and consecutive terms of years for the other offenses. Clark
was tried in October 2016 and convicted of felony murder and other offenses,
and we affirm his conviction today in a separate opinion. See Clark v. State,
___ Ga. ___ (Case No. S22A0950, Jan. 18, 2023).
2 On the same day, trial counsel filed a motion to modify sentence, but
the record does not show that the trial court ever ruled on that motion. On
April 17, 2015, trial counsel also filed a notice of appeal on Kelly’s behalf, but that premature notice of appeal could not have ripened until the motion for
new trial was no longer pending, see Pounds v. State, 309 Ga. 376, 382 (846
SE2d 48) (2020) (“[B]ecause the motion for new trial is pending, any notice of
appeal to an appellate court ‘has not yet ripened, and the trial court retains
jurisdiction to dispose of the motion for new trial.’”) (quoting State v. Hood, 295 Ga. 664, 664 (763 SE2d 487) (2014)), and the order granting a new trial, as
discussed below, was favorable to Kelly and so could not have provided a basis
for him to appeal, see Bivens v. Todd, 222 Ga. 84, 85 (148 SE2d 424) (1966)
(after enactment of Appellate Procedure Act of 1965, as before, a party’s appeal
had to be dismissed when “the only judgment from which he could appeal [was]
completely favorable to him”).
2
the District Attorney’s office based on an alleged conflict of interest,
and current appellate counsel renewed that motion on March 31,
2021. On April 22, 2021, the trial court entered a consent order
granting Kelly’s motion to disqualify and directed the Attorney
General’s office to appoint conflict counsel within 30 days.
On October 19, 2021, at a hearing on the motion for new trial
(and nearly six months after the trial court had directed the
Attorney General to appoint conflict counsel within 30 days), the
assistant district attorney explained that the Attorney General had
not been able to find a prosecutor to volunteer to take this case and
had not yet appointed conflict counsel for the State. Although there
was no lawyer present at the hearing who could represent the State
without conflict, the trial court heard testimony from Kelly and
argument from his appellate counsel and asked counsel to “prepare”
for the court “an order giving the State 30 days . . . if they want to
file for a motion for a rehearing,” and “if we don’t hear anything from
the State during that period of time, then . . . prepare an order
granting [Kelly’s] motion for new trial based on ineffective
3
assistance of counsel.” One week later, on October 26, 2021, the trial
court entered an order, apparently drafted by Kelly’s appellate
counsel, granting Kelly’s motion for new trial based on ineffective
assistance of counsel and providing that “[t]he State is specially
allowed to request a re-hearing on the motion within thirty days
from the filing of this order.”
The Attorney General then appointed a district attorney pro
tempore, who filed an entry of appearance on November 3, 2021. A
new term of court began on Monday, November 15, 2021. See OCGA
§ 15-6-3 (5) (B) (providing that the terms of court for the Superior
Court of Richmond County commence on the “[t]hird Monday in
January, March, May, July, September, and November”). On
November 23, 2021—eight days after the new term of court began
but within 30 days of the October 26, 2021 order—the State filed a
single-page request for a rehearing on Kelly’s motion for new trial. 3
3 The record does not show, and the State does not claim, that the order
granting the motion for new trial was ever vacated or set aside, or that the
State ever filed a notice of appeal from the trial court’s order granting a new
trial, as authorized by OCGA § 5-7-1 (a) (8) (“An appeal may be taken by and
4
On December 21, 2021, Kelly’s appellate counsel filed a brief
arguing that the trial court had lost jurisdiction to reconsider its
order granting Kelly’s motion for new trial. 4 And at a hearing held
that same day, appellate counsel argued that the trial court had lost
jurisdiction to reconsider the motion for new trial it had already
granted Kelly because, among other reasons, the State’s request for
a rehearing was filed after the term of court had expired. The trial
court took that matter “under advisement” and “reserve[d its]
ruling,” but orally granted the district attorney’s request for
rehearing, reopened the hearing on Kelly’s motion for new trial, and
heard additional testimony and argument from both parties on the
substance of the motion.
After both parties filed briefs on the jurisdictional issue and
the State filed a substantive “opposition” to Kelly’s amended motion
on behalf of the State of Georgia from the superior courts . . . in criminal cases . . . [f]rom an order, decision, or judgment of a court granting a motion for new
trial . . . .”).
4An hour later on the same day, appellate counsel also filed an amended
motion for new trial that raised additional grounds.
5
for new trial, the trial court entered an order on January 25, 2022,
denying Kelly’s amended motion for new trial and explaining only
that it “adopt[ed] the reasoning and law set forth in the State’s brief
in opposition to the Motion for New Trial.” The trial court did not
address the jurisdictional issue Kelly had raised and did not
specifically address or evaluate any of Kelly’s claims. Kelly timely
filed a notice of appeal from the trial court’s denial of his amended
motion for new trial. 5
2. On appeal, Kelly contends that the trial court was without
jurisdiction to consider the State’s request for a rehearing because
it was filed outside the term of court. We agree.
Generally speaking, a trial court “has the inherent power
during the same term of court in which the judgment was rendered
to revise, correct, revoke, modify or vacate the judgment, even upon
its own motion.” Barlow v. State, 279 Ga. 870, 872 (621 SE2d 438)
(2005). But “such authority generally does not extend beyond the
5Kelly later amended his notice of appeal, and the case was docketed in
this Court to the August 2022 term and submitted for a decision on the briefs.
6
same term of court, unless a motion to modify, or vacate, or the like
was filed within the same term of court.” Id. (citations omitted). “In
civil cases, an interlocutory ruling does not pass from the control of
the court at the end of the term if the cause remains pending.” Moon
v. State, 287 Ga. 304, 304 (696 SE2d 55) (2010) (citations and
punctuation omitted). In criminal cases, however, “a trial court’s
inherent power . . . to revoke interlocutory rulings [ ] ceases with the
end of the term” unless a motion for reconsideration is filed during
the same term as the ruling at issue. Id. (citing Pledger v. State, 193
Ga. App. 588, 589 (388 SE2d 425) (1989), which held that a trial
court’s inherent power in a criminal case to vacate the grant of a
new trial and reinstate the judgment of conviction expired at the end
of the term, and noted that a court’s inherent power “during, but not
beyond, the term . . . as to criminal cases has not been modified by
statute, as have those cases civil in nature”). See also Moon, 287 Ga.
at 305-309 (Nahmias, J., concurring) (explaining that this rule
“makes sense” when applied to final judgments in criminal and civil
cases, “seems outdated” in the context of interlocutory orders in
7
criminal cases, can be revised only by the General Assembly and not
through judicial decision, and does not preclude “after-term
reconsideration, at least of constitutional issues, where the
‘evidentiary posture’ of the issue has changed”).
The State properly concedes that it “has no credible way to
challenge” the “long-standing maxim” from Barlow articulated
above. In other words, the State does not dispute that, in a criminal
case, a trial court generally loses its inherent power to revise,
correct, revoke, modify, or vacate its judgment at the end of the term
of court in which it renders that judgment. And citing Moon, it
further concedes, as it must, that “the expiration of a court term
supersedes any language in a court’s order granting a party time to
file a motion for reconsideration” and that such language in the trial
court’s order granting a new trial in this case “could not extend the
trial court’s authority to reconsider Kelly’s motion for new trial” and
indeed “had no effect on whether it lost jurisdiction to reconsider its
order after the end of the September court term.” See Moon 287 Ga.
at 304-305 (applying the rule against out-of-term reconsideration to
8
an order granting a change of venue where the trial court “stated
that the State could file a motion to reconsider, and ordered the
parties either to agree on a proper venue or to bring the matter back
by motion for the court to determine a proper venue,” holding that
an order granting an out-of-term motion for reconsideration was a
“nullity,” and directing the trial court “to reinstate its order
changing venue”). See also Long, 247 Ga. at 625 (where the trial
court’s final order stated that “each party may file objections to this
order during the next 30 days,” and appellant did so but the term of
court had expired by that time, the trial court “no longer had
jurisdiction of the matter,” and because no notice of appeal was filed
within 30 days of that order, the appeal from a later order
purporting to affirm the final order had to be dismissed for lack of
jurisdiction). Thus, the trial court’s order denying Kelly’s motion for
new trial was a nullity and must be vacated.
3. Though it largely accepts this reality, the State nonetheless
argues that the trial court’s initial order granting Kelly’s motion for
new trial must be vacated because it was “null and void for failure
9
to comply with due process and fundamental fairness.” The State
offers several lines of reasoning to support its contention that “[t]he
process by which the trial court issued its October 26 order was
fundamentally unfair” and that the order was therefore void: that
the initial hearing on Kelly’s motion for new trial was held over both
parties’ objections and the hearing and order were “functionally ex
parte”; that the written order did not reflect the trial court’s oral
ruling, and in fact reflected “nearly the opposite”; that the order was
drafted by Kelly’s counsel and adopted by the trial court without
giving the State an opportunity to respond; and that the State’s
failure to appeal directly from the trial court’s written order “was
dictated by circumstances beyond the State’s control.” However, as
explained more below, many of the State’s contentions boil down to
a faulty premise that the State had due process rights in the course
of Kelly’s motion-for-new-trial proceedings, and fail because of an
unavailing argument that those supposed rights were violated.
Other of its arguments also fail for reasons that follow.
10
The State does not expressly assert that it has constitutional
due process rights that the trial court violated during Kelly’s initial
motion-for-new-trial proceedings—but that notion is the common
thread that runs through each of its arguments. For example, the
State argues that the “concepts of fundamental fairness and due
process cannot be one-sided.”6 Similarly, in contending that Kelly’s
initial motion-for-new-trial proceedings were “functionally ex parte”
and that it had no “opportunity to address Kelly’s motion for new
6 Although the State admits that “it is a rare case in which these concepts
may be said to apply to the State in a criminal prosecution,” it offers no
example—not even a “rare” one—of due process applying to the State under
such circumstances. The only case that the State cites in support of this idea,
Prater v. State, 222 Ga. App. 486, 488 (474 SE2d 684) (1996), is based on a
statutory notice requirement that is not relevant to this case; Prater does not
mention due process, fundamental fairness, or any other constitutional
principle. Prater therefore does not support the State’s argument that it has a
due-process right in this criminal case. Moreover, Prater is distinguishable
because it did not involve a judicial response, like the trial court’s here, to a
party’s prolonged failure to secure qualified counsel, even after the trial court
directed the party to appoint counsel within a specified time period that had
long since passed. Cf. Allen v. Daker, 311 Ga. 485, 497-498, 499-500 (858 SE2d
731) (2021) (a trial court is permitted to find that even a non-indigent criminal
defendant, who unlike the State has a constitutional right to counsel, has
functionally waived that right by failing “to act diligently to secure counsel,”
so long as the trial court determined whether the defendant acted with
reasonable diligence and whether the absence of counsel was beyond his
control).
11
trial,” the State emphasized that the “cornerstone of due process and
fundamental fairness” is “notice and opportunity to be heard” and
cited Mathews v. Eldridge, 424 U.S. 319, 334 (96 SCt 893, 47 LE2d
18) (1976), and Hood v. Carsten, 267 Ga. 579, 580 (481 SE2d 525)
(1997)—both cases pertaining to procedural due process under the
United States Constitution. Likewise, the State’s arguments that
Kelly’s counsel “alone” prepared the draft order the trial court
ultimately entered, 7 and that the written order did not reflect the
trial court’s earlier oral ruling, 8 sound in a due-process analysis this
7 Even assuming, without deciding, “[t]hat the written order was
proposed by [opposing] counsel[, this] does not mean that the trial judge did
not exercise his discretion regarding its contents.” Mondy v. Magnolia
Advanced Materials, 303 Ga. 764, 773 (815 SE2d 70) (2018) (citing Brockman,
292 Ga. at 713).
8 We note that there does appear to be a difference between what the
trial court asked Kelly’s counsel to memorialize in the order and what counsel
put in the order—specifically, that the trial court did not say that it was then
granting Kelly’s motion for new trial, but rather that it would grant the motion
if the State did not respond to it within 30 days. Notwithstanding this
apparent difference, the trial court signed the proposed order and it therefore
became the order of the Court. See Mondy, 303 Ga. at 772 (“[U]ntil an oral
pronouncement is memorialized, the trial judge has broad discretion to amend,
alter, or completely change his decision, and any discrepancy between the oral
pronouncement and the written ruling will be resolved in favor of the written
judgment.”).
12
Court has before undertaken when evaluating certain ex parte
orders and orders that one party proposes and the trial court adopts.
(Citing State v. Holmes, 306 Ga. 647 (832 SE2d 777) (2019), for the
proposition that such orders “‘do not violate due process and should
not be vacated unless a party can demonstrate that the process by
which the judge arrived at them was fundamentally unfair.’” Id. at
651-652 (citation omitted).)9 Finally, the State admits that it did not
appeal the trial court’s order granting Kelly’s motion for new trial
within the 30 days required by OCGA § 5-7-1, see also OCGA § 5-6-38 (a), but nonetheless contends that because of “circumstances
beyond the State’s control” related to the timing of conflict counsel,
it “would be fundamentally unfair to hold this fact against the
State.” 10
It is thus apparent that, to the extent the State’s arguments
9 In support of these arguments, the State cites two more cases:
Treadaway v. State, 308 Ga. 882, 887 (843 SE2d 784) (2020), and Jefferson v.
Upton, 560 U.S. 284 (130 SCt 2217, 176 LE2d 1032) (2010). But the portion of
Treadaway that the State cites merely quotes and applies the due-process
principles set forth in Holmes, and Jefferson is factually distinguishable.
10 In its brief on appeal, the State cites no authority to support this
specific contention.
13
are grounded in any legal authority at all, they are grounded in the
constitutional right to procedural due process. See, e.g., U.S. Const.
Amend. V (“No person shall . . . be deprived of life, liberty, or
property, without due process of law . . . .”); U.S. Const. Amend. XIV,
Sec. I (“No State shall . . . deprive any person of life, liberty, or
property, without due process of law . . . .”). See also, e.g., Mathews,
424 U.S. 334; Hood, 267 Ga. at 580; Holmes, 306 Ga. at 651-652. But
the foundation on which the State builds its argument contains a
conspicuous crack: its insistence that the State must be “afforded
the basic tenets of due process that every criminal defendant and
every civil party enjoys.” This erroneous premise is fatal to the
State’s claims. 11 As the United States Supreme Court has explained,
“[t]he word ‘person’ in the context of the Due Process Clause of the
Fifth Amendment cannot, by any reasonable mode of interpretation,
be expanded to encompass the States of the Union, and to our
11 The State neither cites nor analyzes any other source of a due process
guarantee, such as statutory or decisional law; accordingly, we do not either.
Indeed, we address only the contentions that we can glean from the State’s
briefing, and we do not consider any other potential basis that the State has
not raised for vacating the order granting Kelly a new trial.
14
knowledge this has never been done by any court.” South Carolina
v. Katzenbach, 383 U.S. 301, 323-324 (86 SCt 803, 15 LE2d 769)
(1966). See also State v. Cash, 298 Ga. 90, 93 (779 SE2d 603) (2015)
(citing this portion of Katzenbach in support of the holding that the
State had no constitutional due process right to appeal an order in
a criminal prosecution). Similarly, we are aware of no court, and the
State has not cited any, that has expanded the meaning of the word
“person” in the Due Process Clause of the Fourteenth Amendment
to encompass states. Compare, e.g., People v. Williams, 429 NE2d
487, 489 (Ill. 1981) (“The due process clauses of the fifth and
fourteenth amendments were enacted to protect ‘persons,’ not
States. . . . It is clear that a State is not a person within the meaning
of the fourteenth amendment; thus, the State cannot benefit from
the due process protection embodied in that amendment. Indeed,
the purpose of the fourteenth amendment is to protect individuals
from State action.”) (citation omitted). Cf. Bibb County v. Hancock,
211 Ga. 429, 441 (86 SE2d 511) (1955) (counties and municipal
corporations “are not persons as against the State within the
15
meaning of the constitutional provision guaranteeing due process to
all persons”). And this makes good sense: the Due Process Clause of
the Fourteenth Amendment was not intended to protect the
government, but rather “to secure the individual from the arbitrary
exercise of the powers of government.” Daniels v. Williams, 474 U.S.
327, 331 (106 SCt 662, 88 LE2d 662) (1986) (citation and
punctuation omitted). See also County of Sacramento v. Lewis, 523
U.S. 833, 845 (118 SCt 1708, 140 LE2d 1043) (1998) (“We have
emphasized time and again that the touchstone of due process is
protection of the individual against arbitrary action of
government.”) (citation and punctuation omitted). Accordingly, we
reject the State’s contention that it was deprived of constitutional
due process in Kelly’s motion-for-new-trial proceedings.
Because the trial court was without jurisdiction to consider the
State’s out-of-term request for reconsideration and enter an order
denying the motion for new trial, that order must be vacated. And
even assuming that the State can challenge the trial court’s initial
order granting Kelly a new trial without having filed a cross-appeal
16
on that issue, see Floyd v. Floyd, 291 Ga. 605, 605 n.1 (732 SE2d
258) (2012) (“[A]n appellee ordinarily must file a cross-appeal to
preserve a claim of error, except when the claim of error is material
to, and intertwined with, a claim of error properly raised by the
appellant.”), the State’s due-process challenge fails, and the trial
court’s initial order granting Kelly’s motion for new trial remains in
effect. The case therefore is remanded for further proceedings
pursuant to the order granting Kelly’s motion for new trial.
Judgment vacated and case remanded with direction. All the
Justices concur.
17