Seals v. State ( 2021 )

In the Supreme Court of Georgia
Decided: June 18, 2021
S20G0931. SEALS v. THE STATE.
PETERSON, Justice.
Defendants in criminal cases may take immediate appeals
from final judgments, which OCGA § 5-6-34 (a) (1) defines as when
“the case is no longer pending in the court below[.]” In applying this
familiar principle, we have often dismissed for lack of jurisdiction
appeals in criminal cases because verdicts have been rendered or
sentences have been imposed on less than all counts of an
indictment or accusation. This case presents the question of whether
the same rule applies when one or more counts have been “dead-
docketed.” It does; dead-docketing, while a common and
longstanding practice in Georgia courts, has almost no statutory
authority and none that would allow different treatment here. And
precedent from our Court of Appeals has for decades made clear that
when a count is dead-docketed, the case remains pending in the trial
court. Accordingly, we hold that dead-docketing a count leaves that
count undecided and, thus, leaves the entire “case pending in the
court below.” Such a case cannot be appealed as a final judgment
under OCGA § 5-6-34 (a) (1); instead, it requires a certificate of
immediate review, which Demarquis Seals did not seek. We
therefore affirm the Court of Appeals’s dismissal of his appeal.
The relevant facts are not disputed. In June 2017, a grand jury
returned an indictment against Seals charging him with one count
of rape and one count of child molestation. He was tried before a jury
in October 2018. The jury found Seals guilty of child molestation but
could not reach a verdict on the rape count, prompting the trial court
to declare a mistrial as to that count. On the disposition sheet filed
on November 5, 2018, the trial court entered a 20-year sentence of
imprisonment on the child molestation count, and noted that the
rape count had been mistried and was to be “re-tried.” Less than a
month later, the trial court entered a separate order placing the rape
count on the dead-docket.
2
Seals filed a motion for new trial on November 5, 2018, and
subsequently amended it. 1 The trial court denied Seals’s motion in
August 2019, and Seals filed a timely notice of appeal to the Court
of Appeals. The Court of Appeals dismissed the appeal in February
2020, concluding that the dead-docketed rape count caused the case
to remain pending in the trial court and that Seals was therefore
required to follow the interlocutory appeal procedures to appeal his
conviction and sentence on the child molestation count. We granted
certiorari to consider whether the Court of Appeals correctly
dismissed Seals’s appeal.2
1 Although Seals’s motion was premature, it ripened once the trial court
entered a written sentence. See Southall v. State, 300 Ga. 462, 467 (1) (796
SE2d 261) (2017).
2 Seals filed a supplemental brief in which he attached an order from the
trial court filed in January 2021 purportedly granting the State’s motion to
nolle pros the rape count. The trial court did not have jurisdiction to enter that
order because the appeal was pending here. See Tolbert v. Toole, 296 Ga. 357,
360-361 (2) (767 SE2d 24) (2014) (filing of notice of appeal deprives trial court
of jurisdiction until appeal is resolved and the trial court has received and filed
the remittitur from the appellate court). Moreover, jurisdiction must be
determined at the time of filing. See Plummer v. Plummer, 305 Ga. 23, 27 (2)
(a) (823 SE2d 258) (2019). And appeals are to be decided based only on the
record on appeal. See Meltzer v. C. Buck LeCraw & Co., 225 Ga. 91, 92 (1) (166
SE2d 88) (1969). At the time the notice of appeal was filed, and even at the
time that the Court of Appeals dismissed the case for lack of jurisdiction, the
trial court had not entered the nolle pros order, much less included that order
in the appellate record.
3
1. This is a case of statutory construction.
This appeal turns on what it means for a “case” to become “no
longer pending in the court below.” In answering that question, we
apply the familiar principles by which we construe statutes. “When
we consider the meaning of a statute, we must presume that the
General Assembly meant what it said and said what it meant.” Deal
v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d 337) (2013)
(citation and punctuation omitted). That presumption means that
“we must afford the statutory text its plain and ordinary meaning,
we must view the statutory text in the context in which it appears,
and we must read the statutory text in its most natural and
reasonable way, as an ordinary speaker of the English language
would.” Id. (citations and punctuation omitted).
The ordinary public meaning of statutory text that matters is
the meaning the statutory text had at the time it was enacted. See
FDIC v. Loudermilk, 295 Ga. 579, 589-590 (2) & n.8 (761 SE2d 332)
(2014) (considering original public meaning of statute); cf. Olevik v.
State, 302 Ga. 228, 235 (2) (c) (i) (806 SE2d 505) (2017) (“original
4
public meaning . . . is simply shorthand for the meaning the people
understood a provision to have at the time” it was enacted).
Determining such meaning requires considering the text in the
context in which it was enacted: “As we have said many times before
when interpreting legal text, ‘we do not read words in isolation, but
rather in context.’” City of Guyton v. Barrow, 305 Ga. 799, 805 (3)
(828 SE2d 366) (2019) (quoting Smith v. Ellis, 291 Ga. 566, 573 (3)
(a) (731 SE2d 731) (2012)). “The primary determinant of a text’s
meaning is its context, which includes the structure and history of
the text and the broader context in which that text was enacted,
including statutory and decisional law that forms the legal
background of the written text.” City of Guyton, 305 Ga. at 805 (3)
(citing Undisclosed LLC v. State, 302 Ga. 418, 420 (2) (a) (807 SE2d
393) (2017); Olevik, 302 Ga. at 235-236 (2) (c) (i); and Deal 294 Ga.
at 172-173 (1) (a)).
In applying these principles to this case, we confront several
questions. First, is a “case” with multiple counts still “pending”
when some of those counts remain unresolved? As we explain below,
5
the answer generally is yes. Second, is there anything in Georgia
law that would call for a different conclusion when the unresolved
count is dead-docketed? As we explain below, both as a matter of the
few Georgia statutes that reference dead-docketing, and as a matter
of the legal context pre-dating the 1984 enactment of the language
of OCGA § 5-6-34 (a) (1), the answer is no.
2. A case with multiple counts is still pending when one of those
counts remains undisposed.
(a) The original public meaning of OCGA § 5-6-34 (a) (1)
leads us to conclude that a case is not final and is still
pending below if one or more counts are unresolved.
The right of immediate review under OCGA § 5-6-34 (a) (1) has
roots dating back more than 150 years. An 1868 version of the
predecessor to OCGA § 5-6-34 (a) (1) provided as follows:
No cause shall be carried to the Supreme Court upon any
bill of exceptions, so long as the same is pending in the
Court below, unless the decision or judgment complained
of, if it had been rendered as claimed by the plaintiff in
error, would have been a final disposition of the cause.
Code of 1868, § 4191. This Court construed that provision as
meaning that “as long as a defendant remains in the court below or
6
other issues remain untried there, the case is pending there, and no
final judgment has been had[.]” Zorn v. Lamar, 71 Ga. 80, 82 (1883)
(emphasis added). Relying on this Court’s precedents, the Court of
Appeals concluded that the word “cause” as used in the statute,
referred “to the entire case, the entire suit or litigation, and the
entire question being litigated under the petition, and as long as any
portion of the ‘cause’ is pending in the court below the ‘cause’ cannot
be carried to an appellate court,” unless the judgment complained of
would have been the final disposition of the case. Carhart v. Mackle,
22 Ga. App. 520, 522 (96 SE 591) (1918).
The language of this provision was materially the same for
almost 100 years until the Appellate Practice Act was enacted in
1965. See Ga. L. 1965, p. 18, § 1. The Appellate Practice Act changed
the language to say that there was a right to an immediate appeal
“[w]here the judgment is final ⸺ that is to say ⸺ where the cause is
no longer pending in the court below[.]” Id. Despite the rewording,
we concluded that the law regarding reviewable judgments did not
“materially change.” O’Kelley v. Evans, 223 Ga. 512, 513 (156 SE2d
7
450) (1967). This Court and the Court of Appeals continued to hold
that a judgment was not final if there were claims that remained
pending below. See, e.g., Gorrell v. Fowler, 247 Ga. 67, 67 (273 SE2d
852) (1981); Farmers Co-op. Ins. Co. v. Hicks, 227 Ga. 755, 755 (182
SE2d 895) (1971); Register v. Kandlbinder, 132 Ga. App. 435, 435
(208 SE2d 565) (1974); Spell v. State, 120 Ga. App. 398, 399 (170
SE2d 701) (1969).
In 1984, the language of what is now OCGA § 5-6-34 (a) (1) was
changed slightly, replacing the word “cause” with “case.” See Ga. L.
1984, p. 599, § 1. But no decision has suggested that this change
materially altered the statute’s meaning as to what constitutes a
final judgment. Rather, construing that current language, which
applies here, we have held that when a defendant is prosecuted on
a multiple-count indictment, the case is not final and appealable
until the trial court enters a written judgment on each count of the
indictment. See Keller v. State, 275 Ga. 680, 681 (571 SE2d 806)
(2002); see also State v. Riggs, 301 Ga. 63, 65 (1) (799 SE2d 770)
(2017) (“When a trial court fails to impose separate sentences for
8
each count of which a defendant was found guilty, it has not entered
a proper judgment.” (citing Keller)). Similarly, in construing former
OCGA § 5-7-2, which outlined the procedures the State must follow
to appeal when there is no final order or judgment, we concluded
that a trial court’s order dismissing one count of a two-count
indictment was not a final order where the other count was pending
below. See State v. Outen, 289 Ga. 579, 581 (714 SE2d 581) (2011)
(holding that the State’s appeal should have been dismissed because
it did not follow the interlocutory procedures provided by former
OCGA § 5-7-2).
Seals argues that Keller applies only when a trial court fails to
enter a disposition on a count for which the jury reached a verdict,
and argues that Keller does not apply because the jury in this case
did not reach a verdict on the rape count. But there is no principled
reason for that factual distinction to make a legal difference. Keller
and Outen demonstrate that when at least one count of a multi-
count indictment remains pending below, no count may be appealed
as a final judgment. This principle applies equally to civil cases. See,
9
e.g., Islamkhan v. Khan, 299 Ga. 548, 550 (1) (787 SE2d 731) (2016)
(divorce decree was interlocutory order, not a final judgment, when
order reserved issue of attorney fees that was expressly asked for in
pleadings); Keck v. Harris, 277 Ga. 667, 667 (1) (594 SE2d 367)
(2004) (trial court’s order denying constitutional challenge did not
constitute a final judgment under OCGA § 5-6-34 (a) (1) because a
claim remained pending below); see also Tyrones v. Tyrones, 300 Ga.
367, 369 n.2 (792 SE2d 398) (2016) (“[An order] constitutes a final
judgment within the meaning of OCGA § 5-6-34 (a) (1) where it
leaves no issues remaining to be resolved, constitutes the court’s
final ruling on the merits of the action, and leaves the parties with
no further recourse in the trial court.”). Our precedent thus clearly
provides that a case is pending below when one or more counts of a
multi-count complaint or indictment have not been resolved.
This precedent is consistent with the ordinary public meanings
of “case” and “pending” as they relate to legal proceedings. The most
natural ordinary meaning of “case” is a single proceeding, regardless
of whether the proceeding involves one or multiple counts. See
10
Webster’s New World Dictionary of the American Language 219 (2d
College ed. 1980) (relevant definition of “case” is “a legal action or
suit”); see also Black’s Law Dictionary 215 (6th ed. 1990) (first
definition of “case” is “[a] general term for an action, cause, suit, or
controversy, at law or in equity”). Indeed, virtually every criminal
case that this Court and the Court of Appeals considers involves
multiple counts against the defendant. But in those instances, no
one refers to the underlying proceeding (or the appeal) as “cases.”
It’s simply a “case.” These same conventions generally are used in
the trial courts.
Similarly, when a count has not been resolved, we think of that
count as “pending.” See Webster’s New World Dictionary of the
American Language 1050 (2d College ed. 1980) (defining “pending”
as “not decided, determined, or established”); see also Black’s Law
Dictionary 1134 (6th ed. 1990) (providing set of definitions for
“pending” that includes: “Begun, but not yet completed; during;
before the conclusion of; prior to the completion of; unsettled;
undetermined; in the process of settlement or adjustment. Awaiting
11
an occurrence or conclusion of action, period of continuance or
indeterminacy. Thus, an action or suit is ‘pending’ from its inception
until the rendition of final judgment.”). And because a criminal case
often includes multiple counts, one would ordinarily not consider a
case to be resolved fully if one count is pending; instead, the entire
case would be treated as pending, even if some counts were resolved.
Under the ordinary meaning of OCGA § 5-6-34 (a) (1) and given
our established principles, there is but one case here: Seals was tried
under one indictment charging two counts. As we will next explain,
the State’s arguments that the mistried and dead-docketed count is
essentially now a different case are not persuasive.
(b) The authority cited by the parties does not inform the
meaning of OCGA § 5-6-34 (a) (1).
Longstanding precedent provides that declaring a mistrial does
not finally dispose of a case. See Oliveros v. State, 118 Ga. 776, 779
(45 SE 596) (1903); see also Nickles v. State, 86 Ga. App. 284, 284 (1)
(71 SE2d 574) (1952) (citing Oliveros and Starnes v. State, 138 Ga.
341 (75 SE 104) (1912)). Despite this precedent, Seals and the State
12
argue that the mistrial in this case effectively severed the mistried
rape count from the child molestation count on which Seals was
found guilty. But their points are misplaced.
Citing a footnote in Keller, Seals argues that the situation here
is like the multiple trials of severed counts such that the conviction
on the child molestation count was separately appealable. See
Keller, 275 Ga. at 681 n.3 (noting case law holding that when a count
is severed from a multi-count indictment, and separate trials are
held on the severed counts, each conviction on the severed counts is
separately appealable when the sentence is entered on the severed
count). But this is not a situation in which there were multiple trials
held on severed counts. There was only one trial on one indictment.
For its part, the State relies on precedent from the United
States Supreme Court to argue that a single indictment involving
multiple counts is really multiple indictments that have been joined
together, such that the indictments are severed from each other
when there is a verdict and sentence entered on at least one count.
The State also cites several Georgia cases in which an appeal was
13
decided notwithstanding the fact that some of the counts in the
indictment remained pending below. But the State’s authority has
no precedential value for determining the meaning of OCGA § 5-6-
34 (a) (1) or its application here.
The State’s reliance on Pointer v. United States, 151 U.S. 396(14 SCt 410, 38 LE 208) (1894), is misplaced because the relevant
portion of that case merely concerned whether the trial court erred
in denying a motion to quash the indictment where it charged two
different murders. See id. at 400. After noting the common law
preference for an indictment charging only a single count, the Court
concluded that joinder of different felonies in separate counts was
not “necessarily fatal to the indictment” and that a trial court’s
decision to permit that action was a matter of “prudence and
discretion.” Id. at 401-403. Nothing about Pointer’s discussion
regarding the joinder and severance of offenses is relevant to our
consideration here.
The State also relies on Selvester v. United States, 170 U.S. 262(18 SCt 580, 42 LE 1029) (1898), to argue that a jury’s inability to
14
reach a verdict on every count of a multi-count indictment has no
effect on the counts that were decided. But Selvester does not touch
on the issue here. In Selvester, the defendant claimed the jury’s
verdict was a nullity where the jury found that he was guilty on
three counts of the indictment and could not agree on the fourth
count. See id. at 263. The defendant in that case asserted that
“where an indictment consists of several counts, repeated trials
must be had until there is an agreement either for acquittal or
conviction as to each and every count contained in the indictment.”
Id. at 264. The United States Supreme Court concluded that the
jury’s inability to reach a verdict on one count did not render the
verdict a nullity because “although distinct offenses were charged in
separate counts in one indictment, they nevertheless retained their
separate character to such an extent that error or failure as to one
had no essential influence upon the other.” Id. at 268.
This conclusion has no bearing here, because this is not a case
about whether the jury must reach an agreement on all counts in
order for the verdict on the counts decided to be valid. The question
15
before us is whether there is a final judgment under OCGA § 5-6-34
(a) (1) when one or more counts of a multi-count indictment have
been mistried and dead-docketed. Selvester did not purport to
address, much less answer, this question. Nor could a decision of
that Court decide the meaning of a Georgia statute. See Riley v.
Kennedy, 553 U.S. 406, 425 (128 SCt 1970, 170 LE2d 837) (2008) (“A
State’s highest court is unquestionably the ultimate expositor of
state law.” (citation and punctuation omitted)).
Moreover, the State ignores the more relevant and persuasive
precedent from that Court regarding what constitutes a final
judgment. That precedent aligns with our construction of what
constitutes a final judgment under state law. See Collins v. Miller,
252 U.S. 364, 370 (40 SCt 347, 64 LE 616) (1920) (“To be appealable
the judgment must be not only final, but complete[,]” which requires
that the judgment be “final not only as to all the parties, but as to
the whole subject-matter and as to all the causes of action involved.”
(citations omitted)).
16
The State (like the dissent) also points to several cases from
this Court and the Court of Appeals that have considered the merits
of an appeal despite a count remaining pending below. But in none
of those cases was there any discussion of jurisdiction at all, much
less analysis and a holding on the issue. Decisions of this Court and
of the Court of Appeals “do not stand for points that were neither
raised by the parties nor actually decided in the resulting opinion,”
and “questions which merely lurk in the record, neither brought to
the attention of the court nor ruled upon, are not to be considered as
having been so decided as to constitute precedents.” Palmer v. State,
282 Ga. 466, 468 (651 SE2d 86) (2007) (citation and punctuation
omitted). Those cases provide no authority for the State’s position.
3. There is no legal authority for treating cases with dead-
docketed counts differently.
Declaring a mistrial on the rape count meant the case was not
final under our precedent, and placing that count on the dead-docket
did not change the status of the case. The parties generally refer to
the trial court’s discretion to dead-docket cases, but no such
17
authority (which, whatever its origin, is not statutory) creates a
special category for which the general finality rule of OCGA § 5-6-
34 (a) (1) does not apply, because a dead-docketed count remains
untried, see Zorn, 71 Ga. at 82 (there is no final judgment where
“issues remain untried” in the court below), and remains to be
resolved, see Tyrones, 300 Ga. at 369 n.2 (an order constitutes a final
judgment when it leaves no issues remaining to be resolved).
(a) None of the few statutory references to dead-docketing
supports different treatment.
Placing cases on the dead-docket is a procedural tool by which
“the prosecution is postponed indefinitely but may be reinstated any
time at the pleasure of the court.” Beam v. State, 265 Ga. 853, 855
(3) n.3 (463 SE2d 347) (1995) (citation and punctuation omitted).
This practice, while common, is mentioned only in passing in the
Georgia Code. And what scant statutory authority does exist on the
subject – three references – offers nothing to demonstrate that the
effect of dead-docketing a count results in a final judgment on that
count and thus on the case under OCGA § 5-6-34 (a) (1).
18
The first statute merely describes a superior court clerk’s duty
to maintain a criminal case management system that will reflect
“entries of cases which are ordered dead docketed.” OCGA § 15-6-61
(a) (4) (B). The second statute relates to occasions when a surety’s
principal will be considered surrendered or released. See OCGA §
17-6-31 (c), (d) (1). And the final statute concerns a defendant’s
ability to restrict access to his criminal history record. See OCGA §
35-3-37 (j) (3). This statute allows criminal history to be restricted
for a dead-docketed charge only when (1) the charge has remained
on the dead-docket for more than 12 months, (2) the charged
individual petitions the court to restrict access and the court hears
evidence and determines whether restriction is appropriate and why
the count was dead-docketed, and (3) there is no active warrant
pending for the individual. See id.
Nothing about these statutes reveals that a dead-docketed
count is to be treated as a final disposition. Indeed, the treatment of
dead-docketed counts under OCGA § 35-3-37 (j) (3) ⸺ waiting 12
months after dead-docketing and examining the reasons for the
19
dead-docketing ⸺ acknowledges that merely dead-docketing a count
does not necessarily constitute a final disposition.
(b) Extensive Georgia case law treats dead-docketed counts as
pending below.
The term “dead-docketed” is really a misnomer; it refers to a
procedural, administrative device, not to the termination of a
matter. As mentioned above, a dead-docketed count may be
reinstated to the active docket any time at the trial court’s direction.
Inactive and final are not the same thing. As this Court explained
before, placing a count or counts on the dead-docket “certainly
constitute[s] neither a dismissal nor a termination of the
prosecution in the accused’s favor. A case is still pending which can
be called for trial at the judge’s pleasure, or upon which the accused
can make a demand for trial.” Phillips v. State, 279 Ga. 704, 705 (1)
(620 SE2d 367) (2005) (quoting Beam, 265 Ga. at 855 (3) n.3;
emphasis added; punctuation omitted) (relying on this principle to
hold that a defendant was not entitled to any special notice when his
case was removed from the dead-docket for retrial). Because the trial
20
court can return a dead-docketed count to the active docket at any
point, such a count remains pending. See Courtenay v. Randolph,
125 Ga. App. 581, 582 (2) (188 SE2d 396) (1972) (“Placing a case
upon the dead docket certainly constitutes neither a dismissal nor a
termination of the prosecution in the accused’s favor. A case is still
pending which can be called for trial at the judge’s pleasure, or upon
which the accused can make a demand for trial.”); Wilson v. State,
240 Ga. App. 681, 681 (523 SE2d 613) (1999); Ben W. Studdard, Ga.
Crim. Trial Practice § 18.19 (2020-2021 ed.) (“A case is still pending,
even though on the dead docket, and the defendant can make a
demand for trial.”). In the context of malicious prosecution and
malicious arrest cases, which require as an element that the
prosecution has been terminated in the plaintiff’s favor, our courts
have held that element was not yet satisfied when the arrest
warrant or indictment was placed on a dead-docket, because the
underlying criminal action remained pending. See Watkins v.
Laser/Print-Atlanta, Inc., 183 Ga. App. 172, 172-173 (1) (358 SE2d
477) (1987); McCord v. Jones, 168 Ga. App. 891, 892-893 (311 SE2d
21
209) (1983); Webster v. East Point, 164 Ga. App. 605, 609 (3) (294
SE2d 588) (1982). All of these authorities squarely articulate the
principle that a dead-docketed count has not been finally decided
until it has been dismissed, nolle prossed, or resulted in a judgment
by a guilty plea or trial.
Regardless of the practical necessities a trial court may have
for placing a count on the dead-docket, those reasons do not change
the plain meaning of a statute governing when an appeal may be
pursued. The language of OCGA § 5-6-34 (a) (1) does not provide
that there is a final judgment when “the case is not active below”; it
provides instead that there is a final judgment when the “case is no
longer pending below.” We do not have the power to ignore the
meaning of words, nor do we have the power to rewrite statutes to
better suit the perceived needs of courts or parties. See State v.
Fielden, 280 Ga. 444, 448 (629 SE2d 252) (2006); see also Duke v.
State, 306 Ga. 171, 174-187 (2) - (3) (829 SE2d 348) (2019)
(overruling a decision in which this Court purported to create a
judicial exception to the statutory requirements for bringing an
22
interlocutory appeal under OCGA § 5-6-34 (b), even though those
requirements may sometimes interfere with “the interests of judicial
economy”).
When the legislature enacted the current version of OCGA § 5-
6-34 (a) (1) in 1984, it did so against the backdrop of cases like
Courtenay, McCord, and Webster, which held that the dead-
docketing of a case does not terminate the case. That context informs
the meaning of “when a case is no longer pending below.” The plain
meaning of that phrase, bolstered by decades of precedent, makes
clear that when a count is dead-docketed, it remains pending below
even if it is not being actively litigated. And our precedent
unequivocally holds that when a count is pending below, so is the
case of which that count is a part. Because the case remained
pending below, the Court of Appeals was correct to dismiss the
appeal because it was not from a final judgment under OCGA § 5-6-
34 (a) (1).
The dissent thinks our conclusion ⸺ one reached through
ordinary application of long-standing principles of statutory
23
construction ⸺ is wrong. But the dissent reaches the opposite view
without articulating or applying any principles of statutory
construction. Indeed, while agreeing that the meaning of “pending”
is central to this case, the dissent at no point explains what it thinks
“pending” means, much less cites even a single legal authority for
such a meaning. Instead, the dissent turns its focus to whether a
case is no longer “active.” But “active” is not a word that appears in
OCGA § 5-6-34 (a) (1), relevant Georgia precedent, or any of the
definitions we have identified, and the dissent does not explain why
“active” is a word that has any legal relevance to the question before
us today. We readily acknowledge that a dead-docketed count is not
active during its time on the dead docket, but we are aware of no
legal authority of any kind that determines whether a case is
“pending” based on whether that case has a presently “active” count.
Dockets in many criminal cases are “inactive” for months at a time,
but that does not mean that the cases are no longer “pending” in the
trial court and can be immediately appealed during those dead
periods. The dissent also places emphasis on the word “dead,” but
24
that word is also not in the statute and, as we have shown, a dead-
docketed count is not really dead, merely inactive. 3
Moreover, as mentioned above, long-standing precedent from
the Court of Appeals (which, although not binding on us, has never
been overruled and has been the law of Georgia for some time) bars
malicious prosecution and malicious arrest lawsuits predicated on
dead-docketed counts precisely because those counts remain
undecided. The dissent’s view would uproot this settled law and our
own decision in Phillips, but it does not engage in an analysis of why
those decisions should be abandoned. As we explain below, we share
some (but not all) of the dissent’s concerns about the practical
implications of our decision today. But the judicial power the
Georgia Constitution vests in us does not include the power to
rewrite statutes in ways we believe would achieve better outcomes;
that power is vested solely in the General Assembly.
4. The General Assembly may wish to amend OCGA § 5-6-34 (a)
to authorize appeals in this situation.
3 Or, as Miracle Max might say, only “mostly dead.” See The Princess
Bride (20th Century Fox 1987) (“There’s a big difference between mostly dead
and all dead. Mostly dead is slightly alive.”).
25
The dissent’s and the parties’ agreement that Seals’s appeal
should be heard now does not empower us to create jurisdiction
where it is not authorized by statute and is thus lacking. See Veasley
v. State, 272 Ga. 837, 839 (537 SE2d 42) (2000). But the dissent does
raise legitimate policy concerns that the General Assembly should
consider in deciding whether to amend OCGA § 5-6-34 (a) to allow
for immediate appeals in cases where the only non-resolved counts
are dead-docketed. 4
Allowing an immediate appeal in a case like Seals’s could
expedite resolution, without first requiring either (1) the trial court
to dismiss or nolle pros a count charging a serious crime without
certainty that the defendant will end up serving a significant
sentence on other counts, or (2) a retrial that might not result in any
4We note in this regard that OCGA § 5-6-34 (a) has been amended over
the years to include other situations (none applicable here) in which immediate
appeals are authorized despite the case not being final. See id. (a) (2) - (13).
OCGA § 5-7-2 also has been amended to authorize the State to take immediate
appeals of certain cases that would otherwise require a certificate of immediate
review. See id. (b) - (c).
26
additional time being served, even if a guilty verdict is returned,
depending on how the trial court handles sentencing and the result
on appeal.5 And, although we are confident that the trial judges and
prosecutors of this State would conduct themselves appropriately,
the potential for abuse of a system that allows a dead-docketed count
to postpone an appeal indefinitely does pose a troubling prospect. 6
But any constitutional claims that might arise from such abuse
would be as-applied, are not present here where Seals never
requested a certificate of immediate review, and offer no basis for a
thumb on the scale of the interpretive question before us today.7 And
other concerns the dissent articulates are less well-founded. In
particular, we do not share the dissent’s concern that certificates of
5 Legislation to allow immediate appeals in cases like this one might well
be able to be crafted in a more targeted manner than the dissent’s
interpretation of the existing statute; that interpretation, which necessarily
applies to all cases with dead-docketed counts, might well force more unwanted
piecemeal appeals than a more targeted legislative rewrite could achieve.
6 A conviction that is not a final judgment is, of course, appealable if a
certificate of immediate review is sought timely and granted by the trial court.
See OCGA § 5-6-34 (b). But the denial of a certificate is unreviewable. See
Duke, 306 Ga. at 179 (3) (a).
7 We also note that the Court of Appeals has held that it is an abuse of
discretion to dead-docket a criminal count over the objection of the defendant.
See Newman v. State, 121 Ga. App. 692. 694 (3) (175 SE2d 144) (1970).
27
immediate review would not be available due to the requirement
that they be sought within 10 days after the order sought to be
appealed. The dissent points out correctly that transcripts almost
always take longer than 10 days to complete. But that poses a
problem only in the unlikely event that an appeal is sought directly
from the conviction and sentence. Under existing practice, the far
better course is to file and litigate a motion for new trial (during
which the transcripts will be completed), and only then seek a
certificate of immediate review in the event that the motion for new
trial is denied. Nothing about this opinion’s construction of the
statutory terms “case” and “pending” affects the ability of a
defendant to file a motion for new trial as to a count on which he or
she has been convicted; the motion for new trial statute uses
completely different language that allows the filing of such a motion.
See OCGA § 5-5-40 (a) (“All motions for new trial, except in
extraordinary cases, shall be made within 30 days of the entry of the
28
judgment on the verdict or entry of the judgment where the case was
tried without a jury.”). 8
In any event, generalized concerns about potential abuse of
statutory language are for the General Assembly to address. When
Georgia law is clear ⸺ and here it is ⸺ our task is merely to apply
it. As the United States Supreme Court recently observed, a
“[c]ourt’s task is to discern and apply the law’s plain meaning as
faithfully as we can, not ‘to assess the consequences of each approach
and adopt the one that produces the least mischief.’” BP P.L.C. v.
Mayor and City Council of Baltimore, 593 U.S. ____, slip op. at 13
(May 17, 2021) (quoting Lewis v. Chicago, 560 U.S. 205, 217 (130
SCt 2191, 176 LE2d 967) (2010)).
Judgment affirmed. All the Justices concur, except Melton, C.
J., and LaGrua, J., who dissent.
8It is also possible that in circumstances like Seals’s, a trial court might
sever the mistried count to allow the immediate appeal of the counts on which
a judgment was entered. See OCGA § 16-1-7 (c) (“When two or more crimes are
charged as required by subsection (b) of this Code section, the court in the
interest of justice may order that one or more of such charges be tried
separately.”); Dingler v. State, 233 Ga. 462, 463-464 (211 SE2d 752) (1975)
(adopting ABA’s standard on severance of charges).
29
LAGRUA, Justice, dissenting.
The majority’s conclusion that “dead” means “pending” is
illogical. Once a count is moved to the dead docket, the count is
dead. I have grave concerns about the majority’s opinion in this
case, and thus, I must respectfully dissent.
1. OCGA § 5-6-34 (a) identifies the categories of trial court
judgments that are directly appealable to this Court or the Court of
Appeals. Seals directly appealed his child molestation conviction to
the Court of Appeals as a “final judgment” under OCGA § 5-6-34 (a)
(1), which defines “final judgments” as those “where the case is no
longer pending below.” Id. Given this definition, what it means to
be “pending” is central to our analysis of whether Seals’s child
molestation conviction – which was irrefutably resolved and
disposed of below – could be directly appealed after his rape count
was placed on the dead docket. The majority erroneously concludes
that the dead-docketed count is still pending, and a direct appeal
cannot be had. I conclude otherwise.
30
The Georgia Code does not define “pending” in the context of
OCGA § 5-6-34 (a) (1) or otherwise, presumably because the
meaning is clear. And, significantly, as will be explained further in
this dissent, the dead-docketing procedure is not a creature of any
statute, but was born out of necessity and convenience in the trial
courts to effectively and efficiently address criminal charges that
would otherwise remain pending against a criminal defendant or
would appear on the trial court’s active criminal docket. This
procedural tool, acknowledged by the majority to be “a common and
longstanding practice in Georgia courts,” can be requested by the
State, by the defendant, or at the recommendation of the trial court
to resolve and close a case or certain counts of an indictment
(hereinafter “case/count”) until it can be tried or re-tried, if ever. The
dead-docketing procedure will generally commence before trial or
following a mistrial, but requires a motion by one of the parties and
an affirmative act by the trial court; an order placing a case/count
upon the dead docket (or denying the motion) will follow. At the
conclusion of this process, the case/count at issue is removed from
31
the court’s active docket and placed on the dead docket.
2. Before our consideration of this granted cert, the majority
of cases addressing the dead docket procedure originated from our
Court of Appeals and the Eleventh Circuit Court of Appeals, neither
of which are binding on this Court. 9 See, e.g., Howard v. Warden,
776 F3d 772 (11th Cir. 2015); State v. Creel, 216 Ga. App. 394, 394-
395 (454 SE2d 804) (1995); State v. Marcus, 206 Ga. App. 385 (425
SE2d 351) (1992); McCord v. State, 168 Ga. App. 891 (311 SE2d 209)
(1983); Courtenay v. Randolph, 125 Ga. App. 581 (188 SE2d 396)
(1972); Newman v. State, 121 Ga. App. 692 (175 SE2d 144) (1970).
And, in these cases, the court made no effort to reconcile the idea
that something could be “dead” with the notion that it could
somehow simultaneously be “pending,” as well. See Courtenay, 125
9 Only two cases from our Court have explicitly addressed the use of the
dead docket. See, e.g., Phillips v. State, 279 Ga. 704, 705 (1) (620 SE2d 367)
(2005); Beam v. State, 265 Ga. 853, 855, n.3 (463 SE2d 347) (1995). The Beam
case explained the dead-docketing procedure in reliance upon opinions from
the Court of Appeals. Beam, 265 Ga. at 855, n.3. Phillips relied on the dead-
docketing language from Beam and simply addressed whether a defendant
received sufficient notice for due process purposes that his case was being
removed from the dead docket for a retrial of certain of his charges. Phillips,
279 Ga. at 705.
32
Ga. App. at 583. In addition, while the court determined that
“statutory authority for the criminal dead docket is contained in”
OCGA § 15-6-61 (a) (4) (B) (formerly Code § 24-2714 (5) (7)), this is
misleading. See Creel, 216 Ga. App. at 395. See also Newman, 121
Ga. App. at 694.
The dead docket was an existing administrative procedure
used by trial courts when it was incorporated by the legislature into
OCGA § 15-6-61 (a) (4) (B) and prior versions of this statute. After
trial courts’ long implementation of this procedural device, the
maintenance of the dead docket was included by statute among the
duties of a clerk of superior court.10 See OCGA § 15-6-61 (a) (4) (B).
Under OCGA § 15-6-61 (a) (4) (B), the clerk of superior court has a
duty to maintain an automated criminal case management system,
which shall contain: (1) a summary record of all criminal
indictments in which true bills are rendered; (2) all criminal
10As discussed in the majority opinion, the dead docket is also referenced
in OCGA § 17-6-31 (c), (d) (1) in relation to when a surety’s principal will be
considered surrendered or released, as well as in OCGA § 35-3-37 (J) (3), which
addresses a criminal defendant’s ability to restrict access to his or her criminal
history record.
33
accusations that have been filed in the office of the clerk of superior
court; and (3) entries of other matters of a criminal nature filed with
the clerk, including quasi-civil proceedings and entries of cases
which are ordered dead-docketed.
The Court of Appeals’ conclusion in Newman and its progeny
(and of this Court in reliance thereon) that a dead-docketed count is
a pending count defies reason. As a practical and procedural matter,
when a case/count is moved to the dead docket, it has
simultaneously been removed from the active docket. See Marcus,
206 Ga. App. at 385 (“Following the arrest of the defendant, the case
was removed from the dead docket and returned to active status.”).
See also Howard v. Warden, 776 F3d 772, 775-776 (11th Cir. 2015)
(holding that because the trial court moved the defendant’s
indictment to the Georgia “dead docket”, “[b]y definition, the
indictment is not active, see OCGA § 15-6-61 (a) (4) (B),” and
“imposes no present restraints on [the defendant’s] liberty”). At this
juncture, the case/count is not active or pending; it is, by its very
description, dead and remains so unless or until it is returned to the
34
active docket. See OCGA § 15-6-61 (A) (4) (B). See also Howard,
776 F3d at 775-776. Additionally, although this Court and the Court
of Appeals maintain that a dead-docketed case/count is a “pending”
case/count, Newman and its progeny also acknowledge that a dead-
docketed case/count merely “can be called for trial at the judge’s
pleasure” and “may be reinstated.” These are terms of possibility,
not certainty. While a dead-docketed case/count may conceivably
become alive and active again, albeit only through the affirmative
act of moving it off the dead docket and returning it to the active
docket, the case/count may just as conceivably remain dead and
inactive. And, this uncertain and indefinite outcome should not
affect our analysis here. Here, in the moment that Seals filed a
direct appeal of his child molestation conviction, his rape count was
dead.
3. This conclusion comports with how a dead-docketed
case/count has been consistently treated in our trial courts, where
the procedure was first adopted and continues to be utilized. And,
to conclude otherwise would render the dead-docket meaningless,
35
raise serious due process concerns, and potentially thwart appellate
review until an indeterminate or even non-existent time.
Interlocutory appellate review requires both trial court and
appellate court approval, and thus, a convicted defendant is not
guaranteed an appeal. See OCGA § 5-6-34 (b) (interlocutory appeal
may be obtained only after the trial court certifies that its judgment
“is of such importance to the case that immediate review should be
had,” and, if such certification is made, the appellate court has
“discretion[]” to permit an appeal). Likewise, habeas review cannot
be sought until the judgment is final and all appeals have been
exhausted. See OCGA § 9-14-42 (c).
Under our current ruling, whenever a criminal trial results in
a conviction on one or more counts and a mistrial on others, the
defendant cannot directly appeal his conviction – even when a
written disposition has been filed of record – if the defendant’s
mistried counts are placed on the dead docket. Instead, in these
circumstances, which are common, the defendant must ask the trial
court for a certificate of immediate review within just ten days of the
36
entry of the judgment of conviction. See OCGA § 5-6-34 (b). But,
even if the defendant timely seeks this certificate, he is not assured
a right to appeal. The trial court must then determine that the
judgment is “of such importance to the case that immediate review
should be had.” Id. And, if the trial court makes this finding and
grants the certificate, the defendant will still be required to file a
petition in our Court or the Court of Appeals within another ten
days, setting forth “the need for such an appeal and the issue or
issues involved therein.” Id. This Court or the Court of Appeals
must then conclude, in our “respective discretions,” that an issue of
such importance exists. Id.
I fear that our trial and appellate courts will not view a
defendant’s request for immediate review of his conviction, where he
also has a dead-docketed count, as a matter of such importance that
immediate review must be had. And, even if they do, the time period
for seeking and filing an interlocutory appeal in this context is
unrealistic given that the defendant has a constitutional right to
retain or be appointed conflict-free appellate counsel to represent
37
him during the appeal, which can be a lengthy process. See
Williams v. Moody, 287 Ga. 665, 667 (2) (697 SE2d 199) (2010) (“[A]
convicted defendant is entitled to effective assistance of counsel on
direct appeal,” and “[w]here a constitutional right to counsel exists,
the Sixth Amendment to the United States Constitution requires
that counsel’s representation be free from conflicts of interest[;]
[t]hus, a convicted defendant is entitled to appellate representation
by conflict-free counsel as a matter of constitutional law.”). See also
Rowland v. State, 264 Ga. 872, 874-875 (2) (452 SE2d 756) (1995)
([“A]s a matter of state and federal constitutional law, a
criminal defendant is entitled to effective assistance of counsel in
pursuing his appeal of right.”). Additionally, OCGA § 5-6-34 (b)
allows the party seeking an interlocutory appeal to include parts of
the record with the petition, but trial transcripts and records of
exhibits can take months to prepare and file into the record. As
such, the record would not be readily available to the petitioner in
pursuing an interlocutory appeal.
While I recognize that “Georgia law is well settled that the
38
right to appeal is not constitutional, but instead depends on
statutory authority,” Georgia has created a statutory right to a
direct appeal following entry of a final judgment of conviction. Duke
v. State, 306 Ga. 171, 172 (1) (829 SE2d 348) (2019). See also OCGA
§ 5-6-34 (a) (1). To preclude a defendant from immediately attacking
his conviction on appeal would hinder his due process rights,
especially considering that “this Court has held that it will not
review the discretion vested in the trial court in granting or refusing
a certificate for immediate review of interlocutory rulings.” Duke,
306 Ga. at 179. By construing the word “pending” in OCGA § 5-6-
34 (a) (1) to include charges that are dead and inactive, the majority
has interpreted the statute in a manner that obtains absurd results,
which this Court should not countenance and which the legislature
could not have intended. See, e.g., Haugen v. Henry County, 277 Ga.
743, 746 (2) (594 SE2d 324) (2004) (“The judiciary has the duty to
reject a construction of a statute which will result in unreasonable
consequences or absurd results not contemplated by the
legislature.”) (citations and punctuation omitted).
39
4. I agree with the majority opinion’s statement that “[i]t is the
duty of this 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.” Veasley v. State, 272 Ga. 837, 838 (537 SE2d 42)
(2000). And, in applying this principle, the majority opinion notes
that “we have often dismissed appeals in criminal cases when
verdicts have been rendered or sentences have been imposed on less
than all counts of an indictment or accusation.” However, we have
also routinely considered direct appeals of convictions where, as
here, other counts of the indictment were dead-docketed at the time
of the appeal. See, e.g., Pender v. State, ____ Ga. _____ , n.1 (856
SE2d 302) (2021) (following trial, the jury found the appellant guilty
on seven counts of the indictment, but was unable to reach a verdict
on two of the counts, which were placed on the dead docket; a direct
appeal followed); Terrell v. State, 304 Ga. 183, 183, n.1 (815 SE2d
66) (2018) (prior to trial, six of the fourteen counts of the indictment
were dead-docketed; the appellant then stood trial on the remaining
counts; the jury found him guilty on all counts; and appellant filed a
40
direct appeal); Faust v. State, 302 Ga. 211, 211, n.1 (805 SE2d 826)
(2017) (following a mistrial, two counts of the indictment were
placed on the dead docket; after which the appellant was retried on
the remaining counts, convicted on these counts, and filed a direct
appeal); Walker v. State, 295 Ga. 688, 688, n.1 (763 SE2d 704) (2014)
(prior to trial, one count of the indictment was dead-docketed, and
the appellant was then tried and convicted on the remaining counts,
followed by a direct appeal); Jones v. State, 284 Ga. 672, 672, n.1
(670 SE2d 790) (2008) (following trial, the jury found appellant
guilty on several counts, not guilty on one count, and failed to reach
a verdict on the final count, which was then placed on the dead
docket; a direct appeal followed); Taylor v. State, 282 Ga. 44, 44, n.1
(644 SE2d 850) (2007) (following trial, the appellant was convicted
on all counts, except for one, which was placed on the dead docket,
and appellant timely filed a direct appeal); Thomas v. State, 279 Ga.
363, 363, n.1 (613 SE2d 620) (2005) (one count of the indictment was
dead-docketed, and the appellant was then tried, convicted, and
sentenced on the remaining counts; a direct appeal followed); Grier
41
v. State, 273 Ga. 363, 363, n.1 (541 SE2d 369) (2001) (prior to trial,
the final count of the indictment was dead-docketed, and the
appellant was then tried and found guilty of the remaining counts;
after sentencing, appellant timely filed a direct appeal).
The majority opinion holds that these cases provide no
authority for our consideration of a case in this posture because:
[I]n none of those cases was there any discussion of
jurisdiction at all, much less analysis and a holding on the
issue. Decisions of this Court and of the Court of Appeals
do not stand for points that were neither raised by the
parties nor actually decided in the resulting opinion, and
questions which merely lurk in the record, neither
brought to the attention of the court nor ruled upon, are
not to be considered as having been so decided as to
constitute precedents.
(Citation and punctuation omitted).
However, I am not relying on these cases for their authority. I
cite these cases to demonstrate that we have rightly considered
direct appeals of cases in this posture for more than 20 years (and
possibly longer given that the cases noted above are not an
exhaustive account).
5. I conclude that the dead-docketing of Seals’s rape charge
42
and the denial of his motion for new trial on the child molestation
conviction left no part of his case pending below, and he was
authorized to directly appeal his conviction to the Court of Appeals
under OCGA § 5-6-34 (a) (1).
Noting that my view is not the prevailing one, I strongly urge
our legislature to take affirmative steps to change the language of
OCGA § 5-6-34 (a) to authorize a direct appeal by a criminal
defendant of a case in this posture. To leave the statute unchanged,
especially in light of our majority opinion, will upend years of trial
court practice where the dead docket procedure has been utilized for
a myriad of practical, strategic, and economic reasons and will leave
defendants without a meaningful and effectual method to appeal
their convictions.
I am authorized to state that Chief Justice Melton joins in this
dissent.
43