Moore v. State

FINAL COPY

               S20A0344. MOORE v. THE STATE.


     NAHMIAS, Presiding Justice.

     Appellant Carzell Moore, who is representing himself, appeals

the trial court’s denial of his motion to set aside a September 2017

order denying his motion for an out-of-time appeal from his 2002

resentencing on his 1977 convictions for murder and rape. Moore

contends that the trial court abused its discretion by denying his

motion to set aside because he was not given proper notice of the

September 2017 order. But the record supports the trial court’s

ruling, so we affirm.

     1. The long and complicated procedural history of Moore’s case

was detailed in our opinion on his last appeal. See Moore v. State,

 (

) (2019). On remand from that

decision, the trial court held an evidentiary hearing on Moore’s

motion to set aside the September 2017 order. The State presented

testimony from the Chief Deputy Clerk for the Monroe County
Superior Court that in September 2017, she worked on criminal

cases in the clerk’s office; when she received a judge’s signed order

in a criminal case, her practice was to file it and send copies to the

parties; she was familiar with Moore’s case and was particularly

careful with it because it was a murder case that had involved the

death penalty; and she filed the September 2017 order denying

Moore’s motion for an out-of-time appeal and used adequate postage

to mail a copy to Moore at his record address at Hays State Prison.

She also testified that if the order had been returned to the clerk’s

office, the office would have notated its return and tried to locate

another address for Moore, but there was no such notation in his

case file. Moore briefly cross-examined the Chief Deputy Clerk, but

he did not present any evidence at the hearing.

     On July 29, 2019, the trial court entered an order denying

Moore’s motion to set aside. Noting the Chief Deputy Clerk’s

testimony that she mailed a copy of the September 2017 order to

Moore and that the copy was not returned to the clerk’s office, the

court found that Moore had been given notice of the September 2017
order in accordance with OCGA § 15-6-21 (c). Moore then filed this

appeal.

     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 notice required by OCGA §

15-6-21 (c) to the losing party, that 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.’” Moore, 

 (citation omitted). See also Cambron

v. Canal Ins. Co., 

 (

) (1980),

disapproved in part by Wright v. Young, 

, 684 n.3 (

) (2015). “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.’” Moore, 

(citation omitted).
     In Wright, we explained that the duty imposed by OCGA § 15-

6-21 (c) “only requires that the trial court give notice to the losing

party,” and we disapproved Cambron to the extent it held that

“notice must be sent and received.” Wright, 

 n.3

(emphasis in original). Thus, “[i]f the trial court has in fact given

notice, then a motion to set aside may be properly denied whether

or not the losing party actually received the notice.” 

     In its order denying Moore’s motion to set aside, the trial court

expressly found that Moore had been given notice of the September

2017 order as required by OCGA § 15-6-21 (c). The court credited the

Chief Deputy Clerk’s testimony that she used adequate postage to

mail a copy of the September 2017 order to Moore at his record

address and that the copy was never returned to the clerk’s office.

Citing Wright, the court also correctly recognized that “the legal

requirement of notice is met upon proof of notice given, not the

actual receipt thereof.”

     The record supports the trial court’s finding that notice of the

September 2017 order was given to Moore. Accordingly, the court
did not abuse its discretion by denying Moore’s motion to set aside.

See McCurley v. State, 

, 858 (

) (2018)

(holding that the trial court’s finding that the defendant’s attorneys

were provided with the notice required by OCGA § 15-6-21 (c) was

supported by testimony from the court’s administrative assistant

that he mailed copies of the judge’s order to the attorneys and that

the court’s records did not indicate that the mailings were

returned).1

      Judgment affirmed. All the Justices concur.



                     DECIDED APRIL 20, 2020.
     Murder. Monroe Superior Court. Before Judge Wilson.
     Carzell Moore, pro se.
     Jonathan L. Adams, District Attorney, Cynthia T. Adams,
Elizabeth K. Presley, Assistant District Attorneys; Christopher M.
Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General, for
appellee.

      1 Moore contends that the trial court abused its discretion because it

failed to consider certified copies of his legal mail log entries at Hays State
Prison that he attached to his motion to set aside. But those mail log entries
were not offered or admitted into evidence during the hearing on the motion;
indeed, they were not even mentioned. In any event, the mail log entries could
only show, if anything, that Moore did not receive notice of the September 2017
order, and as discussed above, receipt of notice is not a requirement under
OCGA § 15-6-21 (c). See Wright, 

 n.3.