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: May 6, 2025
S25A0363. PATTERSON v. THE STATE.
MCMILLIAN, Justice.
Kiwani Khalif Patterson was convicted of malice murder and
other crimes for the shooting death of Tarik Bentley. 1 After
Patterson’s appeal was docketed, this Court raised the question of
1 The crimes occurred on April 24, 2016. On August 17, 2016, a Chatham
County grand jury indicted Patterson for malice murder (Count 1), two counts
of felony murder (Counts 2 and 3), possession of a firearm during the
commission of a felony (Count 4), and possession of a firearm by a convicted
felon during a crime (Count 5).
At a trial from February 24 to 26, 2020, a jury found Patterson guilty of
all counts. On March 5, 2020, the trial court sentenced Patterson to serve life
in prison without the possibility of parole for Count 1 and a consecutive 15-year sentence for Count 5. Counts 2 and 3 were vacated by operation of law,
and the trial court merged Count 4 into Count 5 for sentencing purposes.
Patterson filed a timely motion for new trial on April 3, 2020. Following
a hearing, the trial court denied the motion on June 10, 2024. Patterson did
not timely appeal from that order, but on August 27, 2024, he filed a notice of
appeal and a separate motion for reconsideration and extension of time to file
a notice of appeal. On August 29, 2024, the trial court set aside its June 10,
2024 order denying Patterson’s motion for new trial and again denied
Patterson’s motion for new trial. Patterson then filed a new notice of appeal on
September 10, 2024. The case was docketed to the term of this Court beginning
in December 2024 and submitted for a decision on the briefs.
whether the Court had jurisdiction over the appeal and issued an
order directing briefing on whether the trial court was divested of
jurisdiction by Patterson’s filing of an untimely notice of appeal such
that the trial court’s subsequent order vacating and re-entering the
order denying the motion for new trial was void. See Gilliam v.
State, 312 Ga. 60, 61 (860 SE2d 543) (2021) (“It is not only the right
but the duty of a reviewing or appellate court to raise the question
of its jurisdiction in all cases in which there may be any doubt as to
the existence of such jurisdiction.”) (citation and punctuation
omitted). Because we conclude that the trial court was divested of
jurisdiction until an appellate court dismissed Patterson’s appeal,
we vacate the judgment, dismiss the appeal, and remand for further
proceedings without reaching the merits of Patterson’s contentions.
As pertinent to the jurisdictional issue only, the record shows
the following. After his sentencing, Patterson filed a timely motion
for new trial on April 3, 2020, which was denied on June 10, 2024.
Service of the trial court’s order was made on Patterson’s attorney
of record the same day. Patterson, through new counsel, filed an
2
untimely notice of appeal on August 27, 2024.2 On the same day,
Patterson also filed a motion for reconsideration and extension of
time to file a notice of appeal. On August 29, 2024, the trial court
entered two orders: one setting aside its June 10, 2024 order denying
Patterson’s motion for new trial and the other again denying
Patterson’s motion for new trial. Patterson then filed a new notice
of appeal on September 10, 2024, which was within 30 days of the
August 29, 2024 order denying Patterson’s motion for new trial.
The question of whether this Court has jurisdiction over this
appeal turns on whether the untimely August 27, 2024 notice of
appeal divested the trial court of its jurisdiction to set aside and reenter the order denying the motion for new trial. It is well-settled
that “‘[e]ven if an appeal is jurisdictionally defective from the outset,
a notice of appeal generally acts as supersedeas until the appeal is
dismissed.’” Gonzales v. State, 315 Ga. 661, 663 (1) (a) (884 SE2d
339) (2023) (quoting Jones v. Peach Trader Inc., 302 Ga. 504, 508 (2)
2 A notice of appeal “shall be filed within 30 days after the entry of the
order” denying a motion for new trial. OCGA § 5-6-38 (a).
3
(807 SE2d 840) (2017)). We have explained that the supersedeas
effect of a notice of appeal deprives “the trial court of the power to
affect the judgment appealed.” Ricks v. State, 303 Ga. 567, 567 (814
SE2d 318) (2018) (cleaned up). See also Scroggins v. State, 288 Ga.
346, 347 (703 SE2d 622) (2010) (“[T]he notice of appeal acted as
supersedeas and deprived the trial court of the power to affect the
judgment appealed, so that subsequent proceedings purporting to
supplement, amend, alter or modify the judgment, whether
pursuant to statutory or inherent power, are without effect.”
(cleaned up)).
In Scroggins, the defendant attempted to appeal an order
revoking his probation by filing a notice of appeal though an “order
revoking probation may only be appealed by the discretionary
procedures set forth in OCGA § 5-6-35.” 288 Ga. at 347. Yet this
Court held that the notice of appeal precluded the trial court from
supplementing its order revoking probation with an order
purporting to grant an out-of-time discretionary appeal. Id.
Similarly, the untimely notice of appeal in this case was defective,
4
but under the general rule that a notice of appeal acts as a
supersedeas until the appeal is dismissed, the trial court was
divested of jurisdiction to vacate and re-enter the order denying the
motion for a new trial that was being appealed.3
Patterson claims that (1) his first notice of appeal was merely
an exhibit to the motion for reconsideration filed on the same day
(rather than a standalone notice of appeal) and (2) even if it was a
standalone notice of appeal, it was filed prematurely and ripened
when the trial court entered the new order denying the motion for a
3 Though the cases we cited in the order directing the parties to brief the
jurisdictional issue addressed whether the notices of appeal filed in those cases
were legally effective, they are distinguishable. See Islamkhan v. Khan, 299
Ga. 548 (787 SE2d 731) (2016) (appeal from interlocutory order without first
obtaining certificate of immediate review); Tolbert v. Toole, 296 Ga. 357 (767
SE2d 24) (2014) (pro se notice of appeal filed by represented defendant). In
Islamkhan, we reasoned that the notice of appeal had no legal effect because
OCGA § 5-6-34 (b) requires “a party to obtain both a certificate of immediate
review from the trial court and an order from the appropriate appellate court
granting the appeal prior to a notice of appeal pursuant to OCGA § 5-6-37 being
effective as supersedeas[.]” 299 Ga. at 551 (2) (emphasis in original). Unlike
the interlocutory order in Islamkhan, the order denying Patterson’s motion for
new trial was a final order appealable by notice of appeal. Tolbert involved a
pro se notice of appeal when the defendant was represented by counsel, and
under authority then in effect, the pro se notice of appeal “had no legal effect
and thus did not divest the trial court of jurisdiction to try him.” 296 Ga. at 363 (3). But see Johnson v. State, 315 Ga. 876, 889 (3) (885 SE2d 725) (2023) (“So
we overrule our past decisions to the extent that they hold that pro se filings
by counseled defendants are always legal nullities.”).
5
new trial. See Gillen v. Bostick, 234 Ga. 308, 310-11 (1) (215 SE2d
676) (1975) (notice of appeal filed before entry of final judgment was
premature but became effective once the final judgment was entered
such that the “[C]ourt has jurisdiction of the appeal”). These claims
are without merit. The document was clearly labeled and filed as a
notice of appeal, and the motion for reconsideration did not reference
the notice of appeal as an exhibit. It is also evident that the notice
of appeal was not “premature” because it was attempting to appeal
the previously entered final order denying the motion for new trial.
For these reasons, we vacate the judgment, dismiss the appeal,
and remand for further proceedings. 4
4 In Cook v. State, 313 Ga. 471, 501 (3) (d) n.22 (870 SE2d 758) (2022),
we explained that:
to the extent that the filing deadline is missed by a short period of
time and the term of court in which the judgment of conviction was
entered still has not expired, the trial court may set aside and
reenter the judgment to allow a timely post-trial motion or appeal
to be filed. The availability of this historical practice, which is
rooted in the common law, should alleviate some of the dissent’s
concern about ineffective counsel missing jurisdictional deadlines
by just a few days or weeks.
(citation omitted). Thus, under Cook, it may be possible on remand for the trial
court to set aside and re-enter the order denying the motion for a new trial,
thereby permitting Patterson to pursue his direct appeal. See Gray v. State,
6
Judgment vacated, appeal dismissed, and case remanded.
Peterson, CJ, Warren, PJ, and Bethel, Ellington, LaGrua, Colvin,
and Pinson, JJ, concur.
310 Ga. 259, 262 (3) (850 SE2d 36) (2020) (“Georgia courts have long applied
the common-law rule that the trial court has the inherent authority to modify
a judgment within the term of court and that a motion made during the term
serves to extend the power to modify.”) (cleaned up). We express no opinion as
to whether this remedy is available to Patterson under the circumstances of
this case.
7