State v. Whitman

369 Ga.App. 25

891 S.E.2d 560

The STATE v. WHITMAN.

A22A0489

Court of Appeals of Georgia.

August 15, 2023

Rebecca Holmes Liles Grist, Macon, Michelle Lea Dissman, Kristen Luellen Murphy, for Appellant.

D. Benjamin Sessions, Andrew Santos Fleischman, for Appellee.

Dillard, Presiding Judge.

The State appeals from the trial court's order suppressing Marty Dustin Whitman's refusal to finish a horizontal gaze nystagmus test or perform additional field-sobriety tests during a traffic stop for suspected driving under the influence of alcohol. ¹ Specifically, the State argues the trial court erred in granting the motion to exclude evidence of Whitman's refusals. But because we lack jurisdiction, we do not reach the merits and instead dismiss this appeal. ²

In every case, this Court must first consider whether it has jurisdiction to reach the issues argued on appeal. ³ And here, Whitman moved to dismiss this appeal on the ground that we lack such jurisdiction, asserting the State improperly brought its appeal under OCGA § 5-7-1 (a) (4) when it was required to do so under OCGA § 5-7-1 (a) (5). ⁴ We agree.

As recognized by our Supreme Court, the right of the State to appeal in criminal cases is derived statutorily from OCGA § 5-7-1 (a), not from the Georgia Constitution. ⁵ And when we interpret statutory language, we necessarily begin our analysis with "familiar and binding canons of construction." ⁶ So, in considering the meaning of a statute, our charge is to "presume that the General Assembly meant what it said and said what it meant." ⁷ Toward that end, we must afford the statutory text its plain and ordinary meaning, ⁸ consider the text contextually, ⁹ read the text "in its most natural and reasonable way, as an ordinary speaker of the English language would," ¹⁰ and seek to "avoid a construction that makes some language mere surplusage." ¹¹ Simply put, when the language of a statute is "plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly." ¹²

Here, looking to the statutes in question, OCGA § 5-7-1 (a) (4) permits an appeal by the State in two instances. First, the State may appeal from "an order, decision, or judgment suppressing or excluding evidence illegally seized. " ¹³ And in the second instance, the State may appeal from "an order, decision, or judgment ... excluding the results of any test for alcohol or drugs in the case of motions made and ruled upon prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first[.]" ¹⁴ On the other hand, OCGA § 5-7-1 (a) (5) permits the State to appeal—subject to certain time limitations—"an order, decision, or judgment excluding any other evidence to be used by the state at trial on any motion filed by the state or defendant at least 30 days prior to trial and ruled on prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first[.]" ¹⁵ Put another way, OCGA § 5-7-1 (a) (5) permits appeals from orders "excluding evidence other than the evidence with which OCGA § 5-7-1 (a) (4) is concerned." ¹⁶

In this case, although the State brings this appeal under OCGA § 5-7-1 (a) (4), Whitman claims it was required to do so under OCGA § 5-7-1 (a) (5). So, we must first consider whether the State's appeal satisfies the criteria delineated in OCGA § 5-7-1 (a) (4) —which is to be strictly construed against the State. ¹⁷ And because the State does not contend this case concerns illegally obtained evidence, our focus will instead be limited to whether it is appealing the exclusion of "the results of any test for alcohol or drugs."

The relevant order below notes that Whitman sought "to exclude evidence of his refusal to perform the Field Sobriety Tests," ¹⁸ and the trial court ultimately concluded that this refusal was inadmissible because "admission of [the] refusal to perform the Field Sobriety Tests would violate [Whitman's] state constitutional right against self-incrimination." ¹⁹ The court's order, then, did not exclude "the results of any test for alcohol or drugs" but rather the refusal to undergo tests. ²⁰ As a result, under the plain language of the statute, the State cannot appeal the trial court's ruling under OCGA § 5-7-1 (a) (4) because it is not the type of evidentiary exclusion encompassed by the right to appeal in that statutory provision. ²¹

In sum, because the plain language of OCGA § 5-7-1 (a) (4) does not permit the State to appeal the exclusion of a defendant's refusal to engage in field-sobriety tests (rather than the exclusion of the results of such tests), the State was required to file its appeal under OCGA § 5-7-1 (a) (5), which it did not do. ²² As a result, we dismiss this appeal for lack of jurisdiction. ²³

Appeal dismissed.

Rickman and Pipkin, JJ., concur.

1 This case was initially transferred to the Supreme Court of Georgia because it implicated that court's exclusive jurisdiction over constitutional questions. See Order, Case No. A22A0489 (June 6, 2022). But our Supreme Court returned the case to this Court after concluding "the issue that supported the transfer ... has now been resolved" by Ammons v. State , 315 Ga. 149, 880 S.E.2d 544 (2022). See Order, Case No. S22A1095 (Jan. 19, 2023) .

2 Oral argument was held in this case on February 1, 2022, and is archived on the Court of Appeals of the State of Georgia's website. See Court of Appeals of the State of Georgia, Oral Argument, Case No. A22A0489 (February 1, 2022), available at https://vimeo.com/672873724. A second oral argument was then held on June 21, 2023, after the case was transferred back to this Court from the Supreme Court of Georgia, and is archived on the Court of Appeals of the State Georgia's website. See Court of Appeals of the State of Georgia, Oral Argument, Case No. A22A0489 (June 21, 2023), available at https://vimeo.com/839732700.

3 See, e.g. , State v. Wheeler , 310 Ga. 72, 74 (1), 849 S.E.2d 401 (2020) ("It is well established that this Court has a duty to inquire into its jurisdiction to entertain each appeal and review the alleged errors of the trial court." (punctuation omitted)); State v. Petty , 362 Ga. App. 825, 827, 870 S.E.2d 241 (2022) (same).

4 Although Whitman filed a motion to dismiss the State's appeal on this basis in the trial court, no such motion was filed before this Court when the case was first docketed in October 2021; and as explained in note 1 supra , we then transferred the case to the Supreme Court of Georgia. As a result, this is our first opportunity to address the question of this Court's jurisdiction. And in any event, a court's lack of subject-matter jurisdiction "cannot be waived and may be raised at any time either in the trial court, in a collateral attack on a judgment, or in an appeal." State v. Fed. Def. Program, Inc. , 315 Ga. 319, 343 (3) (f), 882 S.E.2d 257 (2022) (punctuation omitted); see State v. Rowe , 308 Ga. 806, 809 (2) (a), 843 S.E.2d 537 (2020) (explaining that OCGA § 5-7-1 "limits the subject matters that may be appealed by the State of Georgia in criminal cases" (punctuation omitted)); State v. Cash , 298 Ga. 90, 91 (1) (a), 779 S.E.2d 603 (2015) (explaining that "the State may not appeal any issue in a criminal case, whether by direct or discretionary appeal, unless that issue is listed in OCGA § 5-7-1" (punctuation omitted)).

5 Wheeler , 310 Ga. at 74 (1), 849 S.E.2d 401 ; see State v. Arroyo , 315 Ga. 582, 583, 883 S.E.2d 781 (2023) (" OCGA § 5-7-1 (a) establishes the universe of appeals the State is permitted to seek in criminal cases, and thus appellate courts do not have jurisdiction to entertain an appeal filed by the State in a criminal case that falls outside the ambit of that provision." (punctuation omitted)).

6 Monumedia II, LLC v. Dep't of Transp. , 343 Ga. App. 49, 51 (1), 806 S.E.2d 215 (2017) (punctuation omitted); accord Holcomb v. Long , 329 Ga. App. 515, 517 (1), 765 S.E.2d 687 (2014) ; In the Interest of L. T. , 325 Ga. App. 590, 591, 754 S.E.2d 380 (2014).

7 Monumedia II, LLC , 343 Ga. App. at 51-52 (1), 806 S.E.2d 215 (punctuation omitted); accord Deal v. Coleman , 294 Ga. 170, 172 (1) (a), 751 S.E.2d 337 (2013) ; Holcomb , 329 Ga. App. at 517 (1), 765 S.E.2d 687 ; Martinez v. State , 325 Ga. App. 267, 273 (2), 750 S.E.2d 504 (2013).

8 Holcomb , 329 Ga. App. at 517 (1), 765 S.E.2d 687 ; accord Deal , 294 Ga. at 172 (1) (a), 751 S.E.2d 337 ; see Tibbles v. Teachers Retirement Sys. of Ga., 297 Ga. 557, 558 (1), 775 S.E.2d 527 (2015) ("A statute draws its meaning, of course, from its text." (punctuation & citation omitted)); Chan v. Ellis , 296 Ga. 838, 839 (1), 770 S.E.2d 851 (2015) (same); State v. Able , 321 Ga. App. 632, 636, 742 S.E.2d 149 (2013) ("A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies) ...."); Singletary v. State , 310 Ga. App. 570, 572, 713 S.E.2d 698 (2011) ("In construing these statutes, we apply the fundamental rules of statutory construction that require us to construe the statutes according to their terms, [and] to give words their plain and ordinary meaning ...." (punctuation omitted)).

9 Monumedia II, LLC , 343 Ga. App. at 52 (1), 806 S.E.2d 215 ; see Arizona v. Inter Tribal Council of Ariz., Inc. , 570 U.S. 1, 10 (II) (B), 133 S.Ct. 2247, 186 L.Ed.2d 239 (2013) (Scalia, J.) ("Words that can have more than one meaning are given content, however, by their surroundings." (punctuation omitted)); Deal , 294 Ga. at 172 (1) (a), 751 S.E.2d 337 ("[W]e must view the statutory text in the context in which it appears[.]"); Hendry v. Hendry , 292 Ga. 1, 3 (1), 734 S.E.2d 46 (2012) (same); In the Interest of L. T. , 325 Ga. App. at 592, 754 S.E.2d 380 (same); Martinez , 325 Ga. App. at 273 (2), 750 S.E.2d 504 (same); see also OCGA § 1-3-1 (b) ("In all interpretations of statutes, the ordinary signification shall be applied to all words ...."); Tibbl...