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: April 8, 2025
S25A0081. BALLARD v. THE STATE.
COLVIN, Justice.
Appellant Rico Lamar Ballard, who proceeds pro se in this
appeal, was convicted of malice murder in connection with the 1995
shooting death of Jason Pitts. See Ballard v. State, 268 Ga. 895, 895
& n.1 (494 SE2d 644) (1998). We affirmed his conviction on direct
appeal in 1998, see id. at 895, and since then, Appellant has
attempted to overturn his conviction, see, e.g., Ballard v. State, 304
Ga. 67, 67 (815 SE2d 824) (2018) (remanding for the trial court to
dismiss as untimely Appellant’s motion and amended motion in
arrest of judgment, which were filed in 2014 and 2016, respectively).
This is an appeal from a trial court order denying or dismissing
post-conviction motions that Appellant filed in 2022 and 2023.
Specifically, Appellant filed a “Motion to Correct a Clerical Error to
Conform to Oral Pronouncement” on June 30, 2022, a “Petition for
Exoneration and Discharge; Hearing; Retroactive Grant of First
Offender Status” on October 20, 2022, and an extraordinary motion
for new trial on May 22, 2023. After the trial court orally denied the
pending motions at a hearing on June 29, 2023, Appellant filed a
motion to recuse the trial court judge on July 13, 2023, and a “Motion
to Correct Clerical Error” on August 24, 2023. On April 25, 2024, the
trial court held another hearing on the pending motions and then
issued a written order denying or dismissing all of Appellant’s
pending motions.1 For the reasons that follow, we affirm the trial
court’s April 25, 2024 order.
1. Appellant first challenges the trial court’s rejection of his
petition for retroactive first-offender treatment. As explained below,
however, this claim fails.
On October 20, 2022, Appellant filed a petition for retroactive
first-offender treatment under OCGA § 42-8-66, seeking
1 Appellant timely appealed. The appeal was docketed to this Court’s
term beginning in December 2024 and was submitted for a decision on the
briefs.
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exoneration and discharge. During a June 29, 2023 hearing on
Appellant’s pending motions, the trial court briefly heard arguments
concerning Appellant’s petition before orally announcing that it
would not sentence Appellant as a first offender. But the court did
not memorialize its ruling in writing at that time. On April 25, 2024,
the trial court held another hearing on Appellant’s pending motions,
where the court again briefly heard an argument from Appellant
concerning his petition for retroactive first-offender treatment. The
court then entered a written order, stating that, to the extent that
the court had authority to retroactively treat Appellant as a first
offender, the court “decline[d]” to do so because “first offender
treatment for murder would be inappropriate.”
Under Georgia’s First Offender Act, OCGA § 42-8-60 et seq., “a
first-time felony offender who enters a guilty plea may be sentenced
to probation or confinement before an adjudication of guilt and
without entering a judgment of guilt.” Sumrall v. State, __ Ga. __,
__ (1) (910 SE2d 186) (2024) (citation and punctuation omitted).
Specifically, the Act provides:
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When a defendant has not been previously convicted of a
felony, the court may, upon a guilty verdict or plea of
guilty or nolo contendere and before an adjudication of
guilt, without entering a judgment of guilt and with the
consent of the defendant, defer further proceedings and:
(1) Place the defendant on probation; or
(2) Sentence the defendant to a term of confinement.
OCGA § 42-8-60 (a) (1) & (2).
OCGA § 42-8-66 authorizes a court to retroactively treat a
criminal defendant as a first-time offender under certain
circumstances. And as relevant here, that statute provides that, for
a defendant to be eligible for retroactive first-offender treatment, the
prosecutor must consent to the defendant petitioning the court for
such relief, and the defendant must also have been eligible for firstoffender treatment when he was sentenced. See OCGA § 42-8-66 (a)
(1) (providing that a person “who qualified for [first-offender]
sentencing . . . but who was not informed of his or her eligibility for
first offender treatment may, with the consent of the prosecuting
attorney, petition the court” for retroactive first-offender treatment
(emphasis supplied)); OCGA § 42-8-66 (d) (providing that the court
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may grant retroactive first-offender treatment “if the court finds by
a preponderance of the evidence that the defendant was eligible for
sentencing under the terms of this article at the time he or she was
originally sentenced” (emphasis supplied)).
Appellant contends that the trial court had discretion to grant
retroactive first-offender treatment because he was eligible for firstoffender treatment when he was sentenced in 1996. And he contends
that the trial court failed to exercise that discretion because it did
not conduct a hearing on the merits, did not consider the petition on
the merits, and improperly rejected the petition based on a
“mechanical sentencing formula.” As explained below, however,
even if Appellant were correct that the trial court did not conduct a
hearing on the merits of his petition and rejected the petition
without properly considering it on the merits, Appellant has not
shown that denying Appellant’s request for retroactive first-offender
treatment was an abuse of discretion.
We have held that the consent of the prosecuting attorney is a
“threshold requirement for petitioning the superior court” for
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retroactive first-offender treatment. Sumrall, __ Ga. at __ (1)
(citation and punctuation omitted). As a result, “[w]e have held that
a petition for retroactive first-offender treatment is properly rejected
by a trial court without a hearing where an appellant fails to
demonstrate that the prosecuting attorney consented to the filing of
the petition.” Id. (affirming the dismissal of a defendant’s petition
for retroactive first-offender treatment that he filed without first
obtaining the prosecuting attorney’s consent); White v. State, 302
Ga. 69, 69-70 (1), (2) (805 SE2d 25) (2017) (holding that a petition
for retroactive first-offender treatment is “properly denied without
the need for a hearing” if “the prosecuting attorney . . . did not
consent to the filing of the petition”).
Here, Appellant did not purport to file his petition for
retroactive first-offender treatment “with the consent of the
prosecuting attorney,” as required by OCGA § 42-8-66 (a) (1). And
he does not claim on appeal that the prosecuting attorney consented
to him filing that petition. Because Appellant has not demonstrated
that he satisfied this threshold requirement, we affirm the trial
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court’s denial of his petition. See Sumrall, __ Ga. at __ (1); White,
302 Ga. at 69-70 (1), (2).
2. Appellant argues that the trial court abused its discretion in
dismissing his extraordinary motion for new trial without
considering the motion on the merits. We disagree.
Appellant filed an extraordinary motion for new trial on May
3, 2002, which the trial court denied on May 22, 2003. On May 22,
2023, Appellant filed the extraordinary motion for new trial at issue
here, in which Appellant claimed that he had discovered new
evidence. The trial court dismissed the motion as impermissibly
successive under OCGA § 5-5-41 (b), which provides that “only one
such extraordinary motion [for new trial] shall be made or allowed.”
On appeal, Appellant contends that newly discovered evidence
and a change in the law warranted consideration of his May 22, 2023
extraordinary motion for new trial. And he further asserts that the
trial court judge who denied Appellant’s first extraordinary motion
for new trial “had stricken [that] decision from the record.”
We conclude, however, that Appellant has not shown any error
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in the trial court’s dismissal of his May 22, 2023 extraordinary
motion for new trial. The record does not support Appellant’s
assertion that the trial court struck its May 22, 2003 order denying
his first extraordinary motion for new trial. And because Appellant
was permitted to file only one extraordinary motion for new trial,
the trial court properly dismissed his subsequent extraordinary
motion for new trial as impermissibly successive. See Harris v.
State, 313 Ga. 872, 878 (1) n.4 (874 SE2d 73) (2022) (noting that
OCGA § 5-5-41 (b) prohibits a defendant from filing more than one
extraordinary motion for new trial). Cf. Richards v. State, 275 Ga.
190, 191 n.1 (563 SE2d 856) (2002) (explaining that “the pleading
filed by [the] appellant seeking additional appellate review of his
conviction cannot be considered an extraordinary motion for new
trial since a criminal defendant is statutorily limited to filing one
extraordinary motion for new trial (OCGA § 5-5-41 (b)), and [the]
appellant [had previously] filed such a motion”).
3. Appellant argues that the trial court abused its discretion in
dismissing his motions to correct “clerical errors” without
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considering them on the merits. We disagree.
In the trial court, Appellant filed two motions that purported
to seek correction of “clerical errors” in the record. In a motion filed
on November 30, 2022, Appellant asserted that the trial court had
authority to correct a written sentence to conform to the sentence
orally pronounced, but he did not claim that there were any
inconsistencies between the sentence noted on his final disposition
and his sentence as orally pronounced. Instead, Appellant argued
that his indictment was never properly returned in open court, 2 that
the record should be corrected to reflect that fact, and that, as a
result, the court should quash or dismiss his indictment as null and
void and “immediately releas[e]” him from prison. 3 In a second
motion filed on August 24, 2023, which likewise purported to seek
2 See State v. Brown, 293 Ga. 493, 493 (1) (748 SE2d 376) (2013) (“For
over a century the rule in Georgia has been that a grand jury indictment must
be returned into open court.” (citation and punctuation omitted)).
3 Appellant made similar arguments with respect to other purported
“clerical errors” in the record. For example, Appellant argued that the court
should correct the record and immediately release him because he was found
not guilty of murder, his life sentence had been commuted to a first-offender
probationary sentence, and, several times between 2008 and 2021, he accepted
plea deals reducing his sentence to time served.
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correction of a “clerical error,” Appellant argued that the record did
not show that his indictment was properly filed by the clerk because
a file stamp did not appear on the indictment. And he asserted that
“the only method to correct this clerical error [was] to dismiss/quash”
the indictment. In its written order, the trial court noted that
Appellant had not identified a clerical error in his sentence and
concluded that, to the extent that Appellant’s motions to correct
“clerical errors” attempted to challenge his conviction, the motions
could not be construed as being one of the recognized vehicles for
attacking a criminal conviction. Accordingly, the trial court
dismissed the motions.
We conclude that the trial court properly dismissed Appellant’s
motions to correct “clerical errors.” Although those motions
purported to seek correction of “clerical errors” in the record, the
substance of the motions revealed that Appellant was not seeking to
correct errors of a clerical nature, such as typographical mistakes or
omissions of words, sentences, or paragraphs. See Tremble v.
Tremble, 288 Ga. 666, 668-669 (1) (706 SE2d 453) (2011) (describing
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prototypical examples of “clerical mistakes”). Instead, Appellant
asked the court to substantively modify the record and then, based
on its modifications to the record, issue an order dismissing his
indictment, voiding his sentence, and releasing him from prison. See
Porter-Martin v. Martin, 280 Ga. 150, 150-151 (625 SE2d 743) (2006)
(contrasting a “substantive correction,” such as a change to a trial
court’s finding of fact, with a correction of a “clerical mistake”). In
other words, Appellant’s motions to correct “clerical errors” were in
fact motions challenging his conviction.
As the trial court correctly recognized, however, Appellant’s
motions to correct clerical errors were procedurally improper
vehicles for challenging his conviction. The four “traditionally
recognized” vehicles for “challeng[ing] a criminal conviction” are “a
direct appeal of the conviction[,] an extraordinary motion for new
trial, a motion in arrest of judgment, or a petition for habeas corpus.”
Nazario v. State, 293 Ga. 480, 488 (2) (d) (746 SE2d 109) (2013).
Because we do not construe Appellant’s motions purporting to seek
correction of “clerical errors” as any of these four recognized vehicles
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for challenging a criminal conviction, we affirm the trial court’s
dismissal of those motions. See Smith v. State, 298 Ga. 487, 487-488
(782 SE2d 17) (2016) (affirming a trial court’s rejection of a postconviction motion that could not be construed as a proper and timely
vehicle for challenging a criminal conviction).
4. Appellant argues that the trial court judge presiding over his
post-conviction motions abused his discretion in denying Appellant’s
motion to recuse the judge. We disagree.
Following the June 29, 2023 hearing, Appellant filed a motion
to recuse the trial court judge based on statements the judge had
made at the hearing. In its April 25, 2024 order, the trial court
summarily denied Appellant’s motion to recuse along with “[a]ll of
[Appellant’s other] pending motions not specifically mentioned” in
the order.
“We review a trial court’s ruling on a recusal motion for an
abuse of discretion.” Pierce v. State, 319 Ga. 846, 863 (9) (907 SE2d
281) (2024). Disqualification is required only where, among other
things, “an alleged bias . . . stem[s] from an extra-judicial source and
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result[s] in an opinion on the merits on some basis other than what
the judge learned from his participation in the case.” Id. at 863-864
(9) (citation and punctuation omitted).
On appeal, Appellant argues that the judge should have
recused himself because the judge’s statements during the June 29,
2023 hearing on Appellant’s pending motions revealed a bias against
Appellant. Specifically, Appellant points to the following statements
made by the judge: “I don’t think the law favors first offender
treatment in murder cases”; “I may have the discretion [to treat
Appellant as a first offender, but] that doesn’t mean [I] have to do
it”; “I have the discretion, but I’m not going to use it. So I’m not going
to sentence you as a first offender”; “I’ve never given a first offender
in a murder case, and I don’t believe this is appropriate”; “I don’t
have discretion to exonerate you”; and “I’ve never heard of that [case
referred to by Appellant saying the court had discretion to exonerate
him].” 4
4 Appellant does not argue that the judge should have referred the
recusal motion to another judge. See Daker v. State, 300 Ga. 74, 78 (3) (792
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Here, Appellant has not pointed to any comment made by the
trial court judge showing that the judge had a personal bias against
Appellant. Most of the comments highlighted by Appellant simply
communicated the judge’s understanding of the law and what the
law permitted or required. For example, the judge said, “I don’t
think the law favors first offender treatment in murder cases”; “I
have the discretion [to sentence Appellant as a first offender]”; “I
may have the discretion [to treat Appellant as a first offender, but]
that doesn’t mean [I] have to do it”; “I don’t have discretion to
exonerate you”; and “I’ve never heard of that [case referred to by
Appellant saying the court had discretion to exonerate him].”
Appellant argues that some of these comments about the law were
inaccurate. But regardless of their accuracy, they did not suggest
that the judge harbored a bias against Appellant.
Appellant also highlights the judge’s comment that the judge
had “never given a first offender [sentence] in a murder case.” But
SE2d 382) (2016) (describing the conditions under which a “trial court must
refer the motion [to recuse] to another judge” (citation and punctuation
omitted)).
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Appellant has not shown that this comment, which simply stated a
fact about the judge’s past experience, was motivated by, or
reflected, any bias against Appellant.
And the remaining comments highlighted by Appellant — that
the court “d[id not] believe [first-offender treatment was]
appropriate” for Appellant, who had been convicted of murder, and
that the court therefore was “not going to use” his discretion “to
sentence [Appellant] as a first offender” — were only expressions of
the court’s ruling on Appellant’s motion, which were later
memorialized in the court’s written order. Although the court’s
ruling was adverse to Appellant, “[j]udicial rulings adverse to a
party are not disqualifying” as a general matter. Mondy v. Magnolia
Advanced Materials, Inc., 303 Ga. 764, 779 (5) (815 SE2d 70) (2018).
See Barnett v. State, 300 Ga. 551, 555 (2) (796 SE2d 653) (2017)
(“[J]udicial rulings alone almost never constitute a valid basis for a
bias or partiality motion.” (citation and punctuation omitted)). And
here, Appellant has not explained why the court’s judgment that
Appellant should not be retroactively sentenced as a first offender
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due to the nature of his offense demonstrated a personal bias against
Appellant or a bias stemming from an extra-judicial source. See
Pierce, 319 Ga. at 864 (9) (holding that the appellant had not shown
an abuse of discretion in denying his recusal motion where the
appellant “ha[d] not pointed us to any testimony suggesting that the
trial judge had a bias toward [the appellant], much less a bias
toward [the appellant] stemming from some extra-judicial source”).
5. Appellant argues that the trial court’s decision to reduce to
writing its June 29, 2023 oral rulings on Appellant’s pending
motions without first “providing a new hearing” where Appellant
could “reargue his motions” conflicted with our decision in Titelman
v. Stedman, 277 Ga. 460 (591 SE2d 774) (2003). This claim lacks
merit.
As noted above, the trial court held a hearing on June 29, 2023,
where the court heard arguments on Appellant’s pending motions
and orally denied those motions. On April 25, 2024, the trial court
held another hearing on Appellant’s pending motions, where
Appellant briefly argued some of his motions again and the State
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discussed the need for the court to reduce its rulings to writing. That
same day, the trial court issued the written order at issue on appeal,
which dismissed or denied all of Appellant’s pending motions.
Assuming without deciding that the trial court did not hold a
second hearing on Appellant’s motions because the court did not give
Appellant a meaningful opportunity to reargue his motions at the
April 25, 2024 hearing, Appellant has not shown that the trial
court’s failure to hold a second hearing on his motions conflicted
with our decision in Titelman. In Titelman, we explained that, as a
general matter, an oral order must be reduced to writing before it
can be appealed. See Titelman, 277 Ga. at 461 (“[I]t is elementary
that an oral order is not final nor appealable until and unless it is
reduced to writing, signed by the judge, and filed with the clerk.”
(citation and emphasis omitted)). And we held that “mandamus is
appropriate . . . to compel the trial court to enter a written order
[memorializing an oral judgment] from which an appeal can be
taken.” Id. at 462. Contrary to Appellant’s argument, Titelman did
not announce a rule requiring a trial court to hold a hearing on a
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pending motion, much less hold that a trial court is required to hold
a second hearing on the pending motion. Accordingly, this claim
fails. 5
Judgment affirmed. Peterson, CJ, Warren, PJ, and Bethel,
Ellington, McMillian, LaGrua, and Pinson, JJ, concur.
5 To the extent that Appellant contends that the trial court’s failure to
reduce its June 29, 2023 oral rulings to writing conflicted with Titelman, that
claim also fails because, as noted above, the court issued a written order
memorializing its rulings on April 25, 2024.
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