Weatherbed v. State , 271 Ga. 736 ( 1999 )

Benham, Chief Justice,

concurring specially.

I am in full agreement with the majority opinion’s holding that Weatherbed’s guilty plea to murder could not be received by the trial court absent an indictment because OCGA § 17-7-70 (b) does not permit the trial court to accept a guilty plea on an accusation charging a defendant with committing a felony that is “punishable by death or life imprisonment.” I write separately because I believe the time has come for this Court to comply with the change in its appellate jurisdiction in non-capital murder cases brought about by passage of the 1983 Georgia Constitution, as recognized by this Court in State v. Thornton, 253 Ga. 524 (1) (322 SE2d 711) (1984).

Prior to the enactment of the 1983 Constitution, the Supreme Court of Georgia was the appellate court with jurisdiction in “all cases of a conviction of a capital felony.” 1976 Ga. Const., Art. VI, Sec. II, Par. IV. The 1983 Constitution expresses this Court’s current appellate jurisdiction in criminal cases as follows: “All cases in which a sentence of death was imposed or could be imposed.” 1983 Ga. Const., Art. VI, Sec. VI, Par. Ill (8). From the addition of new language, we presume that some change in the existing law was intended. Balest v. Simmons, 201 Ga. App. 605 (1) (a) (411 SE2d 576) (1991). In State v. Thornton, supra, 253 Ga. 524 (1), this Court recognized that the 1983 Constitution’s grant to this Court of jurisdiction over “cases in which a sentence of death was imposed or could be imposed” does not embrace all murder cases, as the previous statement of jurisdiction had. See Collins v. State, 239 Ga. 400 (2) (236 SE2d 759) (1977). In Thornton, the State appealed the trial court’s order granting a murder defendant’s motion to suppress evidence. The appeal was filed initially in the Court of Appeals, which transferred it to this Court on the ground that “a case wherein the defendant has been indicted for murder . . . is a case ‘in which a sentence of death . . . could be imposed.’ ” State v. Thornton, Case No. 68255, May 3, 1984 order. This Court disagreed with the Court of Appeals’ jurisdictional rationale, finding that the appeal was properly filed in the Court of Appeals under the 1983 Constitution. This Court noted the effect of the then-recent change in appellate jurisdiction:

The district attorney did not give timely notice to the defense that the state intended to seek the death penalty, Unified Appeal, § II. A. 1., 246 Ga. at A-7, and for this reason this is not a case “in which a sentence of death was imposed or could be imposed.” Constitution of Georgia of 1983, Art. VI, Sec. VI, Par. Ill (8). Hence, this appeal was properly filed in the Court of Appeals.

State v. Thornton, supra, 253 Ga. 524 (1).

The Thornton court recognized that the 1983 Constitution did not give this Court appellate jurisdiction of an appeal wherein the defendant, though charged with murder, could not receive the death penalty. For policy reasons not identified in the opinion, however, the Court issued an order directing the Court of Appeals to transfer to this Court “all cases in which either a sentence of death or of life imprisonment has been imposed upon conviction of murder, and all pre-conviction appeals in murder cases, whether or not timely notice was given by the district attorney as required by Unified Appeal, § II. A. 1., 246 Ga. at A-7.” Id. Since then, this Court has accepted from the Court of Appeals numerous transfers of appeals from murder convictions in which the defendant was sentenced to life imprisonment. See, e.g., Winn v. State, 269 Ga. 145 (498 SE2d 56) (1998); In re E.W., 256 Ga. 681 (353 SE2d 175) (1987). In fact, the appeal at bar initially was filed in the Court of Appeals, which transferred it to this Court, citing State v. Thornton. Weatherbed v. State, Case No. A99A1701, May 7, 1999 order. While this Court has accepted the Thornton transfers, we have also continued to recognize that the 1983 Constitution gives the Court of Appeals appellate jurisdiction of appeals of murder cases in which a sentence of death cannot be imposed. See, e.g., Rhyne v. State, 264 Ga. 176, 177 (442 SE2d 742) (1994).

This Court’s interpretation of the constitutional grant of jurisdiction in Thornton and Rhyne is supported by a straightforward reading of the language used in the 1983 Constitution. Given the use of the past tense, the phrase “cases in which a sentence of death was imposed,” can only mean cases in which a defendant has been sentenced to death as a result of the judgment of conviction being appealed. The phrase “or could be imposed,” on the other hand, speaks to the future and is applicable to those cases in which the possibility of the imposition of the death penalty still exists. Under current Georgia law, that would encompass the interim review phase of death penalty cases authorized by the Unified Appeal Process (Uniform Superior Court Rule 34), and interlocutory appeals arising in cases where the defendant has been charged with a crime punishable by death and the time within which the district attorney must give notice of intent to seek the death penalty has not yet expired. See USCR 34.

Decided November 22, 1999. Craig L. Cascio, for appellant. John C. Pridgen, District Attorney, Thurhert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, H. Maddox Kilgore, Assistant Attorney General, for appellee.

This Court’s Thornton order requiring the Court of Appeals to transfer to the Supreme Court all appeals of murder convictions and all pre-conviction appeals in murder cases, regardless of whether the death penalty is being sought, continued the jurisdictional line drawn by the 1976 Constitution and the judicial holdings that limited the imposition of the death penalty,² despite the passage of the 1983 constitutional provision. It is time, however, to give effect to the 1983 Constitution’s jurisdictional change which this Court acknowledged in Thornton and Rhyne.

Although I am convinced that appellate jurisdiction over this case is properly in the Court of Appeals since the record does not reflect that the district attorney timely filed a notice of intent to seek the death penalty, I am able to concur in the judgment of reversal because this case was docketed in this Court in compliance with the Thornton order and should therefore be resolved here. However, I would hold that after the appearance of this opinion in the advance sheets, appeals in murder cases in which the death penalty was not imposed or could not be imposed because the State did not announce timely its intent to seek that sanction pursuant to USCR 34 are to be docketed in and decided by the Court of Appeals pursuant to Article VI, Section VI, Paragraph III (8) of the 1983 Georgia Constitution.

2 The 1976 Constitution had given the Supreme Court jurisdiction in “all cases of a conviction of a capital felony,” and “capital felony,” for purposes of appellate jurisdiction, was held in Collins v. State, supra, 239 Ga. 400 (2), to not include rape, armed robbery, and kidnapping because the death penalty could no longer be constitutionally imposed for these crimes.