State v. Wheeler

FINAL COPY

                S20A0758. THE STATE v. WHEELER.


      WARREN, Justice.

      In the early morning hours of March 15, 2017, a fire broke out

in a unit of the Venetian Hills apartment complex, resulting in the

death of tenant George Hughes.               Police investigated the fire,

identified Kamara Wheeler as an arson suspect, and on March 18,

2017, arrested her on an unrelated warrant.                    When officers

interviewed Wheeler about the apartment fire, she admitted that

she started it.1 She was then indicted by a Fulton County grand jury

for one count of malice murder, one count of felony murder

predicated on arson, and four counts of arson in the first degree.

      Wheeler’s trial was scheduled to begin on September 3, 2019.

On January 17, 2019, the State provided Wheeler with a “Notice of


      1 Because no trial has been held in this case, the above facts are gleaned

from police and fire department incident reports, witness statements, and the
trial court’s order denying the State’s Rule 404 (b) “motion,” which is discussed
in more detail below.
Intent to Present Evidence of Other Acts,” and an amended notice

on August 13, 2019, indicating that it intended to offer evidence

under OCGA § 24-4-404 (b) (“Rule 404 (b)”)2 of three prior instances

in which Wheeler set or attempted to set a fire as proof of her motive

and intent in this case. The State also filed the notice and amended

notice with the trial court. It is not clear from the record whether

the State also filed a separate motion related to the Rule 404 (b)

evidence it intended to offer,3 but the record shows that the trial


      2 OCGA § 24-4-404 (b) provides:

       Evidence of other crimes, wrongs, or acts shall not be admissible
       to prove the character of a person in order to show action in
       conformity therewith. It may, however, be admissible for other
       purposes, including, but not limited to, proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or
       absence of mistake or accident. The prosecution in a criminal
       proceeding shall provide reasonable notice to the defense in
       advance of trial, unless pretrial notice is excused by the court upon
       good cause shown, of the general nature of any such evidence it
       intends to introduce at trial. Notice shall not be required when the
       evidence of prior crimes, wrongs, or acts is offered to prove the
       circumstances immediately surrounding the charged crime,
       motive, or prior difficulties between the accused and the alleged
       victim.
       3 As explained more in Division 4 below, to comply with the requirements

of OCGA § 5-7-1 (a) (5), the State must appeal from a qualifying trial court
order “excluding . . . evidence to be used by the state at trial on any motion
filed by the state . . . at least 30 days prior to trial” (emphasis supplied), in
addition to satisfying the requirements set out in subsections (a) (5) (A) and (a)

                                        2
court held a hearing on August 26, 2019, at which the parties made

presentations on the Rule 404 (b) issue. After the hearing, the trial

court denied what it called the “State’s 404 (b) motion” on September

3, 2019. The State now appeals from that order under OCGA § 5-7-

1 (a) (5), arguing that the trial court abused its discretion in denying

the motion because it omitted key facts from its analysis and

misapplied the three-part test governing the admissibility of “other

acts” evidence under Rule 404 (b). But we do not reach the merits

of those claims. As explained below, we hold that the timing and




(5) (B). Although a Rule 404 (b) notice filed with a trial court may be construed
as such a motion, trial courts are “not required to treat [a Rule 404 (b)] notice
as a motion filed under OCGA § 5-7-1 (a) (5).” State v. Battle, 

, 567-568 (

) (2018).
       Here, even if the State’s Rule 404 (b) notices were construed as motions
made under OCGA § 5-7-1 (a) (5), there is still a question about whether the
State’s amended notice was filed timely because it was filed on August 13, less
than 30 days before the then-scheduled September 3 trial. And if its Rule 404
(b) notices were not construed as § 5-7-1 (a) (5) motions, then the State’s failure
to comply with paragraph (a) (5) would serve as an independent basis for
dismissing the State’s appeal. But we need not resolve those questions because
— as explained below in Division 5 — we dismiss the State’s appeal for failing
to comply with the paragraph (a) (5) (B) certification requirement. However,
because the trial court ruled on the State’s Rule 404 (b) evidence and styled its
order as an “Order Denying State’s 404 (b) Motion,” we refer to the State’s 404
(b) “motion” in this opinion, notwithstanding the lack of clarity as to whether
the State’s Rule 404 (b) notices qualified as motions under OCGA § 5-7-1 (a)
(5).
                                        3
certification requirements set forth in OCGA § 5-7-1 (a) (5) are

jurisdictional, and that because the State failed to comply with

OCGA § 5-7-1 (a) (5) (B), we lack jurisdiction to hear the State’s

appeal. We therefore dismiss it.

     1. Legal Background.

     It is well established that “[t]his Court has a duty to inquire

into its jurisdiction to entertain each appeal and review the alleged

errors of the trial court.” Pounds v. State, 

 (

) (2020) (citation and punctuation omitted). The State’s

right to appeal in criminal cases is derived from Georgia’s statutory

law, not from its Constitution. See State v. Martin, 

 (

) (2004). The State is authorized to appeal in

criminal cases under OCGA § 5-7-1 (a).4

     OCGA § 5-7-1 (a) sets forth the various circumstances under


     4 Before 1973, Georgia law did not provide for appeals by the State in

criminal cases. See Martin, 

. See also Ga. L. 1973, p. 297 (now
codified, as amended, at OCGA § 5-7-1 et seq.). And before 2013, when the
General Assembly added current paragraph (a) (5) to OCGA § 5-7-1, the State
had no right to appeal a pre-trial ruling excluding evidence based on general
evidentiary rules. See State v. Rosenbaum, 

, 448 n.9 (

)
(2019).

                                     4
which the State may file an appeal, including, for example, from an

order dismissing an indictment, § 5-7-1 (a) (1); sustaining a plea in

bar, § 5-7-1 (a) (3); suppressing or excluding illegally seized

evidence, § 5-7-1 (a) (4); or excluding the State’s evidence at trial

under certain conditions, § 5-7-1 (a) (5).5             Because § 5-7-1 (a)

establishes the universe of appeals the State is permitted to seek in

criminal cases, “‘[i]f the State attempts an appeal outside the ambit

of OCGA § 5-7-1 (a), the appellate courts do not have jurisdiction to

entertain it.’” State v. Outen, 

 (

) (2011)

(quoting State v. Evans, 

 (

) (2007)).

      Generally speaking, “except as otherwise provided” in the

chapter of the Georgia Code authorizing the State to appeal in

criminal cases, appeals taken by the State under § 5-7-1 (a) are

“governed by the same laws and provisions as to time and other

procedures as apply to other appellants in criminal cases.” OCGA




      5 Under OCGA § 5-7-2 (a), the State is generally required to obtain a

certificate of immediate review from the trial judge to take an interlocutory
appeal in a criminal case. However, OCGA § 5-7-2 (b) provides an exception to
this requirement for appeals taken under OCGA § 5-7-1 (a) (1), (4), (5), and (7).
                                       5
§ 5-7-4. For example, the usual 30-day deadline for filing a notice of

appeal established in OCGA § 5-6-38 applies to every type of appeal

the State files under OCGA § 5-7-1 (a) for which a more specific

deadline is not provided—including for nine of the ten paragraphs

contained in § 5-7-1 (a).

     OCGA § 5-7-1 (a) (5), however, imposes several distinctive

requirements, including a much shorter deadline for filing a notice

of appeal:

     (a)     An appeal may be taken by and on behalf of the
             State of Georgia . . . in the following instances:
                                 ...
             (5) From 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, if:

             (A)   Notwithstanding the provisions of Code
                   Section 5-6-38, the notice of appeal filed
                   pursuant to this paragraph is filed within two
                   days of such order, decision, or judgment; and

             (B)   The prosecuting attorney certifies to the trial
                   court that such appeal is not taken for purpose
                   of delay and that the evidence is a substantial
                   proof of a material fact in the proceeding[.]

                                    6
OCGA § 5-7-1 (a) (5) (emphasis supplied). Thus, § 5-7-1 (a) (5)

permits the State to appeal from a trial court order excluding

evidence so long as the relevant motion was filed “at least 30 days

prior to trial” and ruled on before the earlier of the jury being

impaneled or the defendant being put in jeopardy, and the notice of

appeal is filed within two days of entry of the order, and the

prosecuting attorney certifies that (among other things) the appeal

is “not taken for purpose of delay.”

     2. Procedural Background.

     Here, the trial court denied the State’s Rule 404 (b) motion on

September 3, 2019. Between August 30 and September 5, the State

filed one premature notice of appeal and three amended notices of

appeal.6 Each invoked OCGA § 5-7-1 (a) (3), which permits the State




     6 The State filed its first premature notice of appeal on the morning of

August 30, 2019, after the trial court notified the parties by e-mail that it
intended to deny the State’s motion to admit the Rule 404 (b) evidence. The
State then filed a premature amended notice of appeal that afternoon and a
second premature amended notice of appeal on September 3, 2019, before the
trial court entered its order. On September 5, two days after the trial court
entered its order, the State filed a third amended notice of appeal.
                                     7
to appeal from an order “sustaining a plea or motion in bar,” even

though the order the State appealed from pertained to the exclusion

of evidence, and thus should have been appealed at that stage under

paragraph (a) (5). On January 22, 2020, more than four months

after the trial court issued its order denying the State’s Rule 404 (b)

motion, the prosecuting attorney filed for the first time a § 5-7-1 (a)

(5) (B) certification in the trial court, attesting that the appeal was

“not taken for purpose of delay and that the evidence [was]

substantial proof of a material fact in the trial of the case.” She did

so notwithstanding the fact that the State’s initial (premature)

notice of appeal and the three amended notices that followed

invoked § 5-7-1 (a) (3) and not § 5-7-1 (a) (5). Then, on February 10,

2020, in its fourth amended notice of appeal (i.e., on its fifth

attempt), the State clarified that it actually sought to appeal the

trial court’s September 3, 2019 order under § 5-7-1 (a) (5). At that

point, over five months had passed since the trial court issued its

order denying the State’s Rule 404 (b) motion, and the State’s notice

of appeal (which was actually its third amended notice of appeal)

                                  8
invoking § 5-7-1 (a) (3) had been docketed in this Court almost three

weeks earlier.

     3. The Requirements Contained in OCGA § 5-7-1 (a) (5) Are

        Jurisdictional.

     Given the multiple requirements laid out in the text of OCGA

§ 5-7-1 (a) (5), and in light of the State’s multiple erroneous filings

in this case, a critical question is whether the § 5-7-1 (a) (5)

requirements are jurisdictional. For the reasons explained below,

we hold that the requirements set forth in § 5-7-1 (a) (5) — a statute

that permits interlocutory review — are jurisdictional and must be

satisfied to confer jurisdiction on an appellate court.

     To properly invoke this Court’s jurisdiction, a party must

comply with the statutory provisions authorizing it to appeal. See

Fulton County v. State, 

 (

) (2007)

(noting that “the rules of appellate procedure prescribing the

conditions under which the judgment of the trial court may be

considered appealable” are jurisdictional) (citation and punctuation

omitted). We have emphasized the importance of timeliness with

                                   9
respect to filing notices of appeal, calling it an “absolute

requirement.” See, e.g., Gable v. State, 

 (

) (2011) (“[C]ompliance with the statutory deadline for filing a

notice of appeal is an ‘absolute requirement’ to confer jurisdiction on

an appellate court.”).     See also Spurlock v. Dept. of Human

Resources, 

 (

) (2010) (Nahmias, J.,

concurring specially) (“Our appellate courts have no jurisdiction

over an untimely application.”).

     It is also well established that statutory requirements for

interlocutory review are jurisdictional. See Duke v. State, 

 (

) (2019) (dismissing an application for

interlocutory review because appellant failed to obtain a certificate

of immediate review from the trial court as required by OCGA § 5-

6-34 (b)). See also Islamkhan v. Khan, 

 (

) (2016) (holding that a notice of appeal filed from an

interlocutory order in a divorce action, without first complying with

the statutory procedures for interlocutory appeals set forth in OCGA

§ 5-6-34 (b), had no legal effect).        Moreover, the statutory

                                   10
requirements a party must satisfy to obtain a certificate of

immediate review under OCGA § 5-7-2 are similarly stringent to

those set out in § 5-7-1 (a) (5), and we have repeatedly held that

obtaining a certificate of immediate review within ten days of entry

of the relevant trial court order is a jurisdictional requirement. See,

e.g., Duke, 

 (dismissing an application for

interlocutory review when appellant failed to obtain certificate of

immediate review).

     Like the different types of appeals discussed above, OCGA § 5-

7-1 (a) (5) “prescrib[es] the conditions under which the judgment of

the court may be considered appealable.” Fulton County, 

 (citation and punctuation omitted). See also Spivey v. Nalley,

 (

) (1957) (“The provisions of the law

respecting the procedure to be followed in perfecting appeals to this

court are jurisdictional. . . .”). Given our treatment of notices of

appeal and similar statutory requirements as jurisdictional in other

statutes, and particularly considering our treatment of statutory

requirements for interlocutory appeals as jurisdictional, we see no

                                  11
principled basis for concluding that the requirements set forth in

OCGA § 5-7-1 (a) (5) are anything other than jurisdictional in

nature. As a result, we next make clear exactly what jurisdictional

requirements § 5-7-1 (a) (5) (A) and (B) set forth.

     4. What Jurisdictional Requirements Does OCGA § 5-7-1 (a) (5)

        Impose?

     (a)   OCGA § 5-7-1 (a) (5) (A).

     At the outset, we note that OCGA § 5-7-1 (a) (5) is focused on

timeliness, and indeed on expedition.              Unlike the nine other

paragraphs contained in § 5-7-1 (a), paragraph (a) (5) includes

multiple specific timing requirements, including that the State must

file an appeal from a qualifying trial court order “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[.]”7 Id. (emphasis supplied). Also


     7 As discussed in footnote 3 above, it is unclear whether the motion-filing

deadline was met in this case, but we resolve the appeal on another ground.

                                      12
unlike the other nine paragraphs, which under OCGA § 5-6-38 (a)

allow the State to file a notice of appeal within 30 days of entry of

the relevant trial court order, the State’s appeal under paragraph

(a) (5) may be taken only if the notice of appeal is filed “within two

days of such order[.]”8 Compare OCGA § 5-6-38 (a) with § 5-7-1 (a)

(5) (A). We therefore conclude that the two-day deadline for filing a

notice of appeal, which is expressly set forth in the text of § 5-7-1 (a)

(5) (A), is a jurisdictional requirement the State must satisfy to

comply with § 5-7-1 (a) (5).

      (b)   OCGA § 5-7-1 (a) (5) (B).

      An appeal under OCGA § 5-7-1 (a) (5) is also predicated on a

requirement contained in paragraph (a) (5) (B). See § 5-7-1 (a) (5)

(an appeal may be taken from a qualifying trial court order “if. . . (A)

. . . the notice of appeal . . . is filed within two days of such order . . .

and” (B) the State makes the proper certification) (emphasis


      8 The text of OCGA § 5-7-1 (a) (5) (A) provides that notices of appeal “filed

pursuant to this paragraph” must be filed within two days of the relevant trial
court order. (Emphasis supplied.) Viewed as a whole, the context of the statute
makes clear that “this paragraph” references only § 5-7-1 (a) (5) (A) and not the
entirety of § 5-7-1 (a).
                                        13
supplied). Specifically, the prosecuting attorney must certify to the

trial court that any appeal under that paragraph “is not taken for

purpose of delay and that the evidence is a substantial proof of a

material fact in the proceeding[.]” OCGA § 5-7-1 (a) (5) (B). We hold

that, like the two-day notice of appeal requirement set forth in § 5-

7-1 (a) (5) (A), the certification requirement set forth in § 5-7-1 (a)

(5) (B) is also jurisdictional.

     Notably, however, the text of paragraph (a) (5) (B) — unlike the

text of paragraph (a) (5) (A) — does not impose an express deadline

for the State to make that certification. That raises the question of

whether the State’s paragraph (a) (5) (B) certification must be made

by the same two-day deadline required of a paragraph (a) (5) (A)

notice of appeal. For the reasons explained below, we hold that the

paragraph (a) (5) (B) certification must be filed before or with the

paragraph (a) (5) (A) notice of appeal to satisfy OCGA § 5-7-1 (a) (5)

and thus to confer jurisdiction on an appellate court.

     We recognize that on one hand, the text of OCGA § 5-7-1 (a) (5)

(B) does not itself provide a deadline and does not explicitly

                                  14
incorporate the deadline set forth in paragraph (a) (5) (A). Given

paragraph (a) (5) (A)’s express reference to a two-day deadline, the

absence of a deadline in paragraph (a) (5) (B) could point toward the

conclusion that the State faces no deadline at all for filing the

certification required under paragraph (a) (5) (A). See OCGA § 5-7-

6 (“This chapter shall be liberally construed to effectuate the

purposes in this chapter.”). But viewing the statute as a whole, and

in light of the relevant background law, we conclude that is not so.

     First, the text of OCGA § 5-7-1 (a) (5) provides indications that

the paragraph (a) (5) (B) certification must be filed with or before

the paragraph (a) (5) (A) notice of appeal. That is because OCGA

§ 5-7-1 (a) authorizes an appeal to “be taken” when certain conditions

are met, and paragraph (a) (5) (B) specifically authorizes an appeal

only if the “prosecuting attorney certifies to the trial court that such

an appeal is not taken for purpose of delay and that the evidence is

a substantial proof of a material fact in the proceeding[.]” (Emphasis

supplied.) In ordinary legal parlance, an appeal is “taken” when the

notice of appeal is filed. See OCGA § 5-6-37 (“[A]n appeal may be

                                  15
taken to the Supreme Court or the Court of Appeals by filing with

the clerk of the court . . . a notice of appeal.”); State v. Andrade, 

, 465 n.3 (

) (2016) (noting that an appeal is

“taken” by filing a notice of appeal). See also Fed. Deposit Ins. Corp.

v. Loudermilk, 

 (

) (2019) (“[A] statute

draws its meaning . . . from its text.”) (citation and punctuation

omitted); Deal v. Coleman, 

 (

) (2013)

(in interpreting a statute, “we must afford the statutory text its

‘plain and ordinary meaning’”) (citation omitted). It would be odd to

say that the paragraph (a) (5) (B) requirement was satisfied when

the certification was filed after the notice of appeal; in such a case,

the appeal would have already been taken, which ignores the

present-tense phrase “is not taken” contained in paragraph (a) (5)

(B). And because paragraph (a) (5) (B) requires a prosecutor to

certify that any (a) (5) appeal “is not taken for purpose of delay,” it

would similarly be odd to make such a certification after the

paragraph (a) (5) (A) notice of appeal was filed — i.e., after the

appeal was taken.

                                   16
     This conclusion comports with other aspects of the text and

context of OCGA § 5-7-1 (a) (5), which — when viewed as a whole —

demonstrate that paragraphs (a) (5) (A) and (B) are structured to

promote swift review of the State’s interlocutory appeals challenging

the exclusion of evidence.      See Loudermilk, 

(explaining that “‘[f]or context, we may look to other provisions of

the same statute, the structure and history of the whole statute, and

. . . other law’”) (citation omitted). Those textual indicators include

the not-less-than-thirty-days-before-trial timeframe for any motion

the ruling on which serves as a predicate for an appeal under § 5-7-

1 (a) (5); the two-day deadline (as opposed to the typical thirty days)

under paragraph (a) (5) (A) for filing a notice of appeal; and the

requirement under paragraph (a) (5) (B) that the prosecuting

attorney certify that the appeal “is not taken for purpose of delay[.]”

     Second, our interpretation accounts for the paragraph (a) (5)

(B) requirement that certification be made “to the trial court” — not

to the appellate court. This statutory language suggests that the

certification should be made while the trial court has jurisdiction

                                  17
over the case, rather than after a notice of appeal has been filed and

the trial court is potentially divested of its jurisdiction.9

      In the same vein, the record transmitted to the appellate court

after a notice of appeal is filed normally includes only those filings

made before the notice of appeal is filed. See OCGA § 5-6-37

(providing that as part of the notice of appeal, an appellant must

designate which portions of the record are to be omitted and state

whether “any transcript of evidence and proceedings” is to be

transmitted as part of the record); McHugh Fuller Law Group, PLLC

v. PruittHealth-Toccoa, LLC, 

 (

) (2015)

(explaining that a party may designate for inclusion in the appellate

record “any portion of the trial court clerk’s record . . . that was filed

in the trial court as of the time the notice of appeal was filed”)



      9 To that end, the filing of a notice of appeal by the State in a criminal

case typically acts as a supersedeas that divests the trial court of jurisdiction
over the matter being appealed. See OCGA § 5-6-45 (a) (providing that the
notice of appeal in a criminal case “shall serve as supersedeas in all cases
where a sentence of death has been imposed or where the defendant is
admitted to bail”). See also Chambers v. State, 

 (

) (1992) (holding that the State’s appeal of a suppression order deprived the
trial court of jurisdiction to try the accused and rendered his resulting
convictions for armed robbery and other crimes void).
                                       18
(emphasis supplied).     And once the record is transmitted, the

appellate court may act on the appeal. A paragraph (a) (5) (B)

certification must be part of the record for an appellate court to

confirm its jurisdiction over an appeal made under § 5-7-1 (a) (5),

but for the paragraph (a) (5) (B) certification to even appear in the

record considered by the appellate court — at least under

circumstances where the certification was made after the notice of

appeal was filed — the State would have to move the trial or

appellate court to supplement the record, see OCGA §§ 5-6-41 (f); 5-

6-48 (d), and would have to succeed in securing supplementation

before the appellate court dismissed the appeal for lack of

jurisdiction. We cannot say that the General Assembly meant for

the appellate courts’ jurisdiction over appeals taken under § 5-7-1

(a) (5) to turn on the interplay between the happenstance timing of

the State’s paragraph (a) (5) (B) certification, the record transmittal,

and the appellate court’s decision on an appeal. Indeed, allowing

such whim to control the appellate process could easily result in the

very delay that paragraph (a) (5) (B) is designed to protect against.

                                  19
     Finally, we again note that paragraph (a) (5) (B) requires a

prosecuting attorney to certify that any appeal taken under § 5-7-1

(a) (5) “is not taken for purpose of delay and that the evidence is a

substantial proof of a material fact in the proceeding[.]” Given that

the State must already decide whether to seek an appeal under § 5-

7-1 (a) (5) within two days of entry of the trial court order at issue

(and presumably evaluate its potential appeal before and during

that expedited timeframe), and that paragraph (a) (5) (B) merely

asks the prosecuting attorney to make a one-sentence certification

about facts squarely within his or her knowledge at the time the

State’s notice of appeal is filed, it would be inconsistent to conclude

that a paragraph (a) (5) (B) certification made after a paragraph (a)

(5) (A) notice of appeal is filed could accurately certify that the

appeal is not being taken for purposes of delay.

     5. The State Failed to Comply With OCGA § 5-7-1 (a) (5) Here.

     Pretermitting whether the trial court’s order was a ruling on a

motion filed more than 30 days before trial, see footnote 3 above, the

State satisfied OCGA § 5-7-1 (a) (5) (A) by filing a timely notice of

                                  20
appeal. But both paragraphs (a) (5) (A) and (a) (5) (B) must be

satisfied for the State to comply with § 5-7-1 (a). And given that the

State — which filed the prosecutor’s certification with the trial court

more than four months after entry of the trial court order the State

sought to appeal — has not satisfied the paragraph (a) (5) (B)

requirement here, we lack jurisdiction over this appeal and dismiss

it accordingly.

     Appeal dismissed. All the Justices concur, except Blackwell, J.,
who concurs in Divisions 1, 2, 3, 4 (a), and 5, and in the judgment.



                      Decided October 5, 2020.

     Murder. Fulton Superior Court. Before Judge Schwall.
     Paul L. Howard, Jr., District Attorney, Lauren A. Travis,
Stephany J. Luttrell, Richard B. Caplan, Assistant District
Attorneys; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, for appellant.
     Maxwell G. Schardt, for appellee.




                                  21