Jefferson v. State ( 2021 )

In the Supreme Court of Georgia
Decided: February 1, 2021
S20G0528. JEFFERSON v. THE STATE.
ELLINGTON, Justice.
A Fayette County jury found Ted Jefferson guilty of
kidnapping, two counts of armed robbery, and other offenses, and
the trial court sentenced him to life plus five consecutive years in
prison. Jefferson filed a motion for a new trial, and the trial court
granted the motion in part, finding that the evidence was
insufficient to support Jefferson’s convictions for armed robbery.
The trial court denied the motion as to the remaining convictions.
Jefferson then timely filed a direct appeal, which the Court of
Appeals dismissed. In dismissing the appeal, the Court of Appeals
reasoned that the order partially granting Jefferson’s motion for a
new trial left the case pending in the trial court and that it was,
therefore, a non-final order that could be appealed only through the
interlocutory appeal process. This Court granted certiorari to
consider whether
the Court of Appeals err[ed] in its determination that the
trial court’s order on Jefferson’s motion for new trial,
which granted Jefferson’s motion with regard to two
counts of armed robbery due to insufficiency of the
evidence but denied Jefferson’s motion as to all remaining
counts, was not a final judgment that could be
immediately appealed under OCGA § 5-6-34 (a) (1)?
We answer this question in the affirmative because, as more fully
explained below, the trial court’s order on Jefferson’s motion for a
new trial left no part of the case pending for trial court resolution
and was, therefore, final within the meaning of OCGA § 5-6-34 (a).1
Thus, the trial court’s order was directly appealable. Consequently,
we vacate the dismissal order and remand the case to the Court of
Appeals.
The facts relevant to the question before us are undisputed.
During the hearing on Jefferson’s motion for a new trial, the State
1 OCGA § 5-6-34 (a) (1) provides, in relevant part, that “[a]ppeals may
be taken to the . . . Court of Appeals from the following judgments and rulings
of the superior courts . . . [:] All final judgments, that is to say, where the case
is no longer pending in the court below[.]”
2
conceded that the evidence presented at trial was legally insufficient
to sustain Jefferson’s armed robbery convictions. The trial court
agreed, and entered an order expressly vacating those convictions
on insufficiency of evidence grounds. The trial court also denied
Jefferson’s motion as to his remaining convictions, finding that
Jefferson’s arguments with respect to those convictions lacked
merit.
Although the trial court “granted” Jefferson’s motion as to the
armed robbery convictions, the State is legally barred from retrying
Jefferson on those counts given the court’s rationale for its decision.
“[O]nce a reviewing court reverses a conviction solely for
insufficiency of the evidence to sustain the jury’s verdict of guilty,
double jeopardy bars retrial.” Hall v. State, 244 Ga. 86, 93 (5) (259
SE2d 41) (1979) (citing Burks v. United States, 437 U. S. 1, 16-17
(III) (98 SC 2141, 57 LE2d 1) (1978)). See also Green v. State, 291
Ga. 287, 288 (1) (728 SE2d 668) (2012) (same). Compare Prather v.
State, 303 Ga. App. 374, 376 (1) (693 SE2d 546) (2010) (“As a general
rule, a post-conviction reversal or grant of a motion for new trial
3
which is not based on insufficiency of the evidence does not preclude
retrial.” (punctuation and footnote omitted)).
Only in rare circumstances not present here might a retrial be
possible following a judicial determination that the evidence
presented in support of the crimes charged was insufficient. If, for
example, the trial court had decided that the evidence was legally
insufficient only because of a change in the substantive law after
trial, then perhaps a retrial might be possible. Although this Court
has yet to decide such a case, the Court of Appeals and other courts
have determined that double jeopardy concerns do not preclude the
State from retrying a defendant when the evidence presented at trial
is rendered insufficient only by a post-trial change in law. See Levin
v. State, 346 Ga. App. 340, 342-344 (1) (816 SE2d 170) (2018), cert.
denied Mar. 4, 2019. See also Levin v. Morales, 295 Ga. 781, 785 (764
SE2d 145) (2014) (Blackwell, J., concurring.). Because no such
holding was made below and the State does not suggest that this
narrow exception would apply in this case, the trial court’s
conclusion that the evidence was insufficient to support a conviction
4
on either of the armed robbery counts of the indictment renders its
decision with respect to those counts final, as Jefferson may not be
retried on those counts.
Further, we note that the Court of Appeals’ reliance on Ware v.
State, 282 Ga. 676 (653 SE2d 21) (2007), for the proposition that the
trial court’s order was not final was misplaced. Ware did not address
whether a defendant may bring a direct appeal when a new trial is
granted in part on insufficiency of evidence grounds. Rather, the
State appealed from an order granting the defendant a new trial on
all counts on ineffective assistance of counsel grounds. We held that
former OCGA § 5-7-2, governing appeals by the State, did not permit
a direct appeal from a judgment granting a motion for a new trial
because the judgment was not final and “OCGA § 5-7-2 plainly
requires a certificate of immediate review in any criminal case
where the State appeals from a non-final order, decision, or
judgment, except for those cases which involve a motion for
5
suppression of evidence.” Ware, 282 Ga. at 677.2 Finally, although
we do not reach Jefferson’s alternative argument that an appellate
court may retain jurisdiction of an appeal even when viable counts
of an indictment remain pending in the trial court, we note that the
case law upon which Jefferson relies did not clearly present such a
situation but, rather, appears to have presented the situation in the
instant case.3
Judgment vacated and case remanded. All the Justices concur.
2 Ware was based on a previous version of OCGA § 5-7-2, which was
amended in 2011 to specifically allow the State to appeal directly from an order
granting a motion for new trial. See Ga. L. 2011, p. 612, § 1. That Code section
now provides that, “[f]or purposes of this Code section, the granting of a motion
for new trial or an extraordinary motion for new trial shall be considered a
final order.” OCGA § 5-7-2 (c).
3 In each of the cases from this Court cited by Jefferson, the trial court
denied the motion for a new trial as to murder charges but granted the motion,
apparently on insufficiency of evidence grounds, with respect to another count.
See Moore v. State, 305 Ga. 251, 251 n.1 (824 SE2d 377) (2019) (criminal street
gang activity count set aside by trial court); Wilson v. State, 301 Ga. 83, 83 n.1
(799 SE2d 757) (2017) (evidence insufficient on financial transaction card fraud
count).
6