In Re David Matthew Haney ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 20, 2019
The Court of Appeals hereby passes the following order:
A20D0032. IN RE DAVID MATTHEW HANEY.
In this criminal case against defendant Gary Whittle, Lieutenant David
Matthew Haney of the Glynn County Police Department testified at the hearing on
Whittle’s motion to withdraw his guilty plea. The trial court granted Whittle’s motion
to withdraw his plea, concluding under Brady v. Maryland, 373 U. S. 83 (83 SCt
1194, 10 LE2d 215) (1963), and Giglio v. United States, 405 U. S. 150 (92 SCt 763,
31 LE2d 104) (1972), that the State had suppressed exculpatory evidence and
impeaching information which was relevant to Whittle’s case, and that there was a
reasonable probability disclosure would have changed the outcome of the case. The
trial court found that such information included “[i]mpeaching information within the
meaning of Giglio” with respect to Haney. Haney filed a motion to intervene, seeking
to challenge the trial court’s Giglio finding with respect to him. Whittle’s charges
were terminated by the entry of a nolle prosequi, apparently shortly after the filing of
Haney’s motion to intervene. See Buice v. State, 272 Ga. 323, 324 (528 SE2d 788)
(2000) (“It is well established that entry of a nolle prosequi terminates the prosecution
pending on that indictment and that the State cannot try a defendant on a charge that
has been nol prossed.”). The trial court then denied Haney’s motion to intervene, and
Haney filed this timely application for discretionary appeal of that ruling.
It appears that the trial court’s ruling is directly appealable as a final order
under OCGA § 5-6-34 (a) (1). First, no provision of OCGA § 5-6-35, the
discretionary appeal statute, applies here. Second, compliance with the interlocutory
appeal procedures of OCGA § 5-6-34 (b) is not required, because final judgment has
been entered and nothing remains pending below. “[A]lthough an appeal from the
denial of a motion to intervene usually requires an application for interlocutory
appeal, the denial of [Haney’s] motion to intervene in this case was a final [order.]”
Burruss v. Ferdinand, 245 Ga. App. 203, 203 (1) (536 SE2d 555) (2000); see, e.g.,
Stephens v. McGarrity, 290 Ga. App. 755, 757 (1) (660 SE2d 770) (2008) (direct
appeal of rulings approving settlement agreement and denying motion to intervene);
see also Thomas v. Douglas County, 217 Ga. App. 520, 522 (1) (457 SE2d 835)
(1995) (“Generally, an order is final and appealable when 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.”).
We will grant a timely application for discretionary appeal if the lower court’s
order is subject to direct appeal. See OCGA § 5-6-35 (j). Accordingly, this
application is hereby GRANTED. Haney shall have ten days from the date of this
order to file a notice of appeal with the trial court. If, however, he has already filed
a notice of appeal, he need not file a second notice. The clerk of the trial court is
DIRECTED to include a copy of this order in the record transmitted to the Court of
Appeals.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/20/2019
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.