DocketNumber： S99G0120
Judges： Benham
Filed Date： 10/18/1999
Status： Precedential
Modified Date： 10/19/2024
While awaiting trial on an indictment charging them with possession of cocaine, appellants Gladys Felix and Leonard Lee filed a motion to suppress the contraband found by law enforcement officers executing a search warrant in the room in which appellants were sleeping. The trial court denied the motion, and appellants were convicted. On appeal to the Court of Appeals of Georgia, appellants asserted in their enumeration of errors that “[t]he trial court erred in denying Appellants’ motion to suppress.” In their brief filed with the appellate court, appellants set forth and argued separately four reasons why the motion to suppress should have been granted: because the search warrant allegedly suffered from three defects (the address was incorrect, the warrant appeared to have been issued by a court that did not exist, and the warrant was not supported by probable cause) and because the officers allegedly had executed the warrant illegally by using force to enter the occupied premises. See OCGA § 17-5-27. The Court of Appeals found appellants’ multifarious attack on the trial court’s ruling to be a “compound enumeration” in violation of § 5-6-40, and issued an opinion which addressed only the merits of the contention questioning the sufficiency of the search warrant’s description of the premises to be searched. Felix v. State, 234 Ga. App. 509 (1) (507 SE2d 172) (1998). We granted a writ of certiorari to examine the propriety of the Court of Appeals’ invocation of § 5-6-40, which requires an appellant to file with the clerk of the appellate court “an enumeration of the errors which shall set out separately each error relied upon.”
OCGA § 5-6-40 is a part of the Appellate Practice Act of 1965 (“APA”), described by one commentator as “probably the most substantial change in appellate procedure since creation of the Supreme Court.” E. Freeman Leverett, “The Appellate Procedure Act of 1965,” 1 Ga. State Bar J. 451 (1965). The Act was passed “to simplify the procedure for bringing a case to the appellate court” (Taylor v. R.OA. Motors, 114 Ga. App. 671 (3) (152 SE2d 631) (1966)), and to secure “speedy and uniform justice in a uniform and well-ordered manner;
In the last decade, the composition of the enumeration of the errors has become an important feature of the Court of Appeals’ review of a lower court’s judgment. OCGA § 5-6-40’s requirement that the appellant and cross-appellant file “an enumeration of the errors which shall set out separately each error relied upon” has been a focal point of appellate attention. Concerned that “lumping more than one assertion of error within a single enumeration creates a fair risk that ambiguity, misdirection, or confusion as to the error asserted will occur, thereby giving rise to an increased likelihood of generating inadvertent appellate error [,]” the Court of Appeals announced that, in order to protect its judgments on appellate review, it would exercise its discretion whether to review any of the several assertions of error when faced with an enumerated error it found to assert more than one error. West v. Nodvin, 196 Ga. App. 825 (4) (c) (397 SE2d 567) (1990). The assertions of error not addressed by the appellate court would be treated as abandoned by the appellant. Id. Since then, in over seventy published opinions, the Court of Appeals has informed appellate attorneys that at least one of the errors enumerated by appellate counsel violates. OCGA § 5-6-40 because it includes more than one error. In several of these cases, the Court of Appeals has exercised its discretion and reviewed none of the assertions contained in what it found to be a multifarious enumeration of error. See Bean v. State, 239 Ga. App. 106 (1) (521 SE2d 19) (1999); Carl v. State, 234 Ga. App. 61 (3) (506 SE2d 207) (1998); Stubbs v. Harmon, 226 Ga. App. 631 (2) (487 SE2d 91) (1997);
The disparate application of OCGA § 5-6-40 has resulted from the Court of Appeals’ exercise of discretion in furtherance of its perceived need to protect its judgments “on appellate review.” West v. Nodvin, supra, 196 Ga. App. at 830. The constitutional authority of a court to “exercise such powers as necessary ... to protect or effectuate its judgments” (1983 Ga. Const., Art. VI, Sec. I, Par. IV) enables a
There remains the question of how OCGA § 5-6-40 should be interpreted. As noted above, the Court of Appeals exercised its discretion not to address assertions of error when it determined that an appellant had violated § 5-6-40 by failing to “set out separately” “errors” in the enumeration of errors. OCGA § 5-6-40 defines neither “separately” nor “error.”
Recent case law makes it necessary for' us to update the holding in Mull. The General Assembly has made it clear that all points raised in an appeal are to be considered by the appellate court. In addition to the statutory mandate that the APA be “liberally construed so as to bring about a decision on the merits of every case appealed and to avoid . . . refusal to consider any points raised therein” (OCGA § 5-6-30), the legislature, in enacting OCGA § 5-6-48 (f), has imposed on the appellate courts a statutory duty to discern what errors an appellant is attempting to articulate. “[If] the enumeration of errors fails to enumerate clearly the errors sought to be reviewed [,]” the appellate court is nonetheless required to consider the appeal “[w]here it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, . . . what errors are sought to be asserted upon appeal. . . .” OCGA § 5-6-48 (f). In keeping with the statutory mandates that we construe the APA liberally so that points raised in an appeal are considered and that we carefully examine the appellate record to understand better the trial court errors an appealing party is holding up to appellate scrutiny, we take this opportunity to expand the definition of “set out separately” given us by the Court of Appeals in Mull v.
As stated earlier, another issue revealed by our review of the opinions in which the Court of Appeals found a violation of OCGA § 5-6-40 is that there has not been a clear appellate determination of what constitutes an “error” which must be set forth in the enumeration of errors. We endeavor to do so now.
This Court and the Court of Appeals are courts of review. 1983 Ga. Const., Art. VI, Sec. V, Par. Ill; Art. VI, Sec. VI, Par. II. As appellate courts, we are courts for the correction of errors of law made by the trial courts. Mills v. State, 188 Ga. 616, 623 (4 SE2d 453) (1939). In appellate practice, an error of law is “a false or mistaken conception or application of the law. Such a mistaken or false conception or application of the law to the facts of a cause as will furnish ground for a review of the proceedings. . . .” Black’s Law Dictionary (5th ed.). An error of law has as its basis a specific ruling made by the trial court. In order for a Georgia appellate court to review a trial court ruling for legal error, a party must set forth in the enumeration of errors the allegedly erroneous ruling. OCGA § 5-6-40. The appellate court is precluded from reviewing the propriety of a lower court’s ruling if the ruling is not contained in the enumeration of errors. Lee v. State, 265 Ga. 112 (8) (454 SE2d 761) (1995); Irvin v. Askew, 241 Ga. 565 (2) (246 SE2d 682) (1978).
In the case at bar, the error of law alleged to have been made by the trial court was the denial of appellants’ motion to suppress. Appellants set forth in the enumeration of errors their contention that the trial court’s ruling on their motion to suppress was error. Appellants mounted a multi-pronged attack on the propriety of the ruling they asserted was erroneous. The individual facets of appellants’ attack on the legal ruling with which they took issue are arguments in support of a legal position and are not, in and of themselves, errors of law. Because the arguments supporting a position concern
Inasmuch as appellants Félix and Lee adequately set out in their enumeration of errors that they sought appellate review of the trial court’s denial of their motion to suppress and the Court of Appeals did not address all the arguments raised by appellants in support of their enumerated error, we remand the case to the Court of Appeals in order that appellants’ remaining arguments be addressed.
Judgment vacated and case remanded with direction.
After the Court of Appeals stated it was exercising its discretion to review none of the assertions raised in the enumeration in question, it went on to hold, “in the interest of judicial economy,” that, assuming one of the alleged errors had occurred, it was harmless error.
After announcing it elected not to review any of the asserted errors, the Court of Appeals found that the multiple errors “had not been preserved for appeal” since one of the issues had been ruled on adversely to appellant in an earlier appeal and appellant had conceded in the enumeration of error that no timely objection had been made at trial.
Nor has there been a clear appellate determination of what constitutes an “error” which must be set forth in the enumeration of errors. See, e.g., Versico Corp. v. Engineered Fabrics, supra, 238 Ga. App. 837 (2) (where the contention that the trial court had erred in finding an ambiguity in the contract, in applying the rules of contract construction, and in concluding that there was an intended third-party beneficiary of the contract was ruled to be more than one enumeration of error); Sheffield v. State, 237 Ga. App. 701 (2) (516 SE2d 563) (1999) (assertion that the trial court erred three ways in admitting evidence of a similar transaction ruled to contain more than one error); Mays v. Farah USA, supra, 236 Ga. App. 1 (2); Oliver v. State, supra, 232 Ga. App. 816 (2); Wozniuk v. Kitchin, 229 Ga. App. 359 (2) (494 SE2d 247) (1997); Griffin v. State, supra, 228 Ga. App. 200 (enumeration contending trial court erred in failing to give certain requested charges ruled to contain more than one error); Payne v. Thompson, 234 Ga. App. 533 (507 SE2d 257) (1998) (appellate court ruled enumeration claiming the trial court erred in charging the jury on certain principles of negligence and liability should have been separated into separate enumerations); Willis Mining v. Noggle, 235 Ga. App. 747 (1) (509 SE2d 731) (1998) (appellate court ruled the denial of a motion for directed verdict and the denial of motion for new trial must be separate enumerations of error); Rocha v. State, 234 Ga. App. 48 (3) (506 SE2d 192) (1998) (the trial court’s refusal to admit different evidence by which a party attempted to prove a particular fact ruled to constitute more than one error); Richardson v. State, supra, 233 Ga. App. 233 (3) (enumeration raising multiple allegations of prosecutorial misconduct and trial court error ruled to contain more than one error); Gibson v. State, 233 Ga. App. 838 (4) (505 SE2d 63) (1998) (enumeration asserting error in the trial court’s denial of a motion for directed verdict concerning specified counts of the indictment ruled to improperly combine several errors into one enumeration); Herndon v. State, 229 Ga. App. 457 (5) (b) (494 SE2d 262) (1997) (enumeration asserting error in the admission of a deposition violative of OCGA §§ 24-10-130 and 24-10-135 ruled to assert two errors).
Suggested forms for several documents pertinent to the APA are found in OCGA § 5-6-51.
Accordingly, an enumeration of errors which contains an assertion that the trial court erred in refusing to give certain identified requests to charge, or one which asserts that the trial court erred in permitting certain identified witnesses to testify about a particular matter (e.g., similar transaction evidence) sufficiently “set[s] out separately each error relied upon.”
Of course, if the assertion that a particular trial court ruling was error is not supported by argument or citation of authority, it is deemed abandoned under the rules of each of the Georgia appellate courts. See Court of Appeals Rule 27 (c) (2) and Supreme Court Rule 22. Furthermore, an appealing party may not use its brief to expand its enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of the errors. See, e.g., Williams v. State, 208 Ga. App. 153 (1) (430 SE2d 42) (1993); Moore v. Sinclair, 196 Ga. App. 667 (2) (396 SE2d 557) (1990).