Moore v. State

305 Ga. 699

827 S.E.2d 657

MOORE

v.The STATE.

S19A0138

Supreme Court of Georgia.

Decided: April 29, 2019

Carzell Moore, GDC# 0000393485, Telfair State Prison, 210 Longbridge Road, Helena, Georgia 31037, for Appellant

Jonathan Lang Adams, District Attorney, Cynthia Trimboli Adams, A.D.A., Elizabeth Knight Bobbitt, A.D.A., Towaliga Circuit District Attorney's Office, 625 W 3rd Street, Suite 8, Jackson, Georgia 30233, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellee

Nahmias, Presiding Justice.

Carzell Moore appeals the trial court’s denial of his motion to set aside the court’s September 2017 order denying his motion for an out-of-time appeal, contending that the court did not give him notice of the September 2017 order. The State concedes that the trial court did not properly evaluate Moore’s motion to set aside. We agree, so we vacate the trial court’s order and remand the case for the court to make findings about whether Moore was given proper notice of the September 2017 order.

1. After a jury trial in 1977, Moore was convicted of murder and rape and sentenced to death; his convictions and sentences were affirmed on appeal. See Moore v. State , 240 Ga. 807, 243 S.E.2d 1 (1978). Moore then filed a federal habeas corpus petition, and he was granted a new sentencing proceeding on the ground that the jury had not been properly instructed at the sentencing phase of his trial. See Moore v. Kemp , 809 F.2d 702, 730-733 (11th Cir. 1987) (en banc). The State indicated that it would again seek the death penalty. On June 18, 2002, Moore, who was represented by counsel, waived his right to a jury trial for sentencing and agreed to be sentenced to life imprisonment without the possibility of parole.

Moore did not appeal the new sentencing order. Fifteen years later, on June 22, 2017, he filed a pro se motion for an out-of-time appeal. On September 20, 2017, the trial court denied that motion. Moore did not file a timely appeal from that order. On October 3, 2017, he filed an "amended" motion for an out-of-time appeal, which the trial court also denied. Moore appealed that denial order, but on May 21, 2018, this Court affirmed it, explaining that Moore’s attempt to amend the already adjudicated motion for an out-of-time appeal was untimely and jurisdictionally improper. See Moore v. State , 303 Ga. 743, 746, 814 S.E.2d 676 (2018). We noted Moore’s contention that he was not served with a copy of the September 2017 order, and we explained that although such a circumstance would not extend the time in which a notice of appeal must be filed, Moore could seek to have the order set aside. See id. at 747 n.6, 814 S.E.2d 676.

Accordingly, on May 22, 2018, Moore filed a motion to set aside the September 2017 order denying his original motion for an out-of-time appeal, asserting that he was never served with a copy of that order. On August 10, 2018, the trial court denied Moore’s motion without a hearing, explaining: "The Court of Appeals affirmed the judgment of the trial court on May 21, 2018. Therefore, this Court will not grant Defendant’s Motion to set aside."¹

2. OCGA § 15-6-21 (c) says:

When [the judge] has so decided [a motion], it shall be the duty of the judge to file his or her decision with the clerk of the court in which the cases are pending and to notify the attorney or attorneys of the losing party of his or her decision. Said notice shall not be required if such notice has been waived pursuant to subsection (a) of Code Section 9-11-5 [by a failure to file pleadings].

When the trial court does not give the required notice of an order to the losing party, "the losing party should file a motion to set aside, and the trial court should grant the motion and re-enter the judgment, whereupon the 30-day appeal period would begin to run again." Pierce v. State , 289 Ga. 893, 895, 717 S.E.2d 202 (2011) (citations and quotation marks omitted). See also Cambron v. Canal Ins. Co. , 246 Ga. 147, 148, 269 S.E.2d 426(1980), disapproved in part by Wright v. Young , 297 Ga. 683, 684 n.3, 777 S.E.2d 475 (2015).² When considering the motion to set aside, "the trial court must first make a finding regarding whether the duty imposed by OCGA § 15-6-21 (c) was met." Pierce , 289 Ga. at 895, 717 S.E.2d 202 (citations and quotation marks omitted).

Here, the trial court did not make any findings as to whether Moore was given notice of the September 2017 order denying his motion for an out-of-time appeal. Instead, the trial court denied Moore’s motion to set aside that order on the ground that this...