Moore v. State

FINAL COPY
               S19A0138. MOORE v. THE STATE.


     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, 

 (

)

(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 F2d 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, 

 (

) (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 

 at 747 n.6.

      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,


      1 The trial court was apparently referring to this Court’s May 21, 2018
decision affirming the trial court’s denial of Moore’s amended motion for out-of-time appeal.
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, 

 (

) (2011)

(citations and punctuation omitted). See also Cambron v. Canal Ins.

Co., 

 (

) (1980), disapproved in part by

Wright v. Young, 

, 684 n.3 (

) (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, 

 (citations and punctuation

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 Court

had affirmed an order denying a different motion — Moore’s




      2 In Wright, this Court clarified that “OCGA § 15-6-21 (c) only requires
that the trial court give notice to the losing party,” and disapproved Cambron
to the extent it held that “notice must be sent and received.” Wright, 

 n.3 (emphasis in original).
amended motion for an out-of-time appeal. That was not a proper

basis for denying the motion to set aside. In fact, as noted above, this

Court explained in its opinion that if the trial court had not provided

proper notice of the September 2017 order, Moore could move to

have that order set aside. See Moore, 

 n.6.

Accordingly, the trial court’s order denying Moore’s motion to set

aside is vacated, and the case is remanded for the trial court to

decide whether it provided Moore with notice of the September 2017

order, as required by OCGA § 15-6-21 (c), and to rule on Moore’s

motion to set aside accordingly. See Pierce, 

.

     Judgment vacated and case remanded. All the Justices concur.



                       Decided April 29, 2019.

     Murder. Monroe Superior Court. Before Judge Wilson.

     Carzell Moore, pro se.

     Jonathan L. Adams, District Attorney, Cynthia T. Adams,

Elizabeth K. Bobbitt, Assistant District Attorneys; Christopher M.

Carr, Attorney General, Patricia B. Attaway Burton, Deputy
Attorney General, Paula K. Smith, Senior Assistant Attorney

General, for appellee.