Jefferson v. State

FINAL COPY

            S20G0528.      JEFFERSON v. THE STATE.


     ELLINGTON, Justice.

     A Fayette County jury found Ted Jefferson guilty of

kidnapping, two counts of armed robbery, and other offenses, and

the trial court sentenced him to life plus five consecutive years in

prison. Jefferson filed a motion for a new trial, and the trial court

granted the motion in part, finding that the evidence was

insufficient to support Jefferson’s convictions for armed robbery.

The trial court denied the motion as to the remaining convictions.

Jefferson then timely filed a direct appeal, which the Court of

Appeals dismissed. In dismissing the appeal, the Court of Appeals

reasoned that the order partially granting Jefferson’s motion for a

new trial left the case pending in the trial court and that it was,

therefore, a non-final order that could be appealed only through the

interlocutory appeal process. This Court granted certiorari to

consider whether
      the Court of Appeals err[ed] in its determination that the
      trial court’s order on Jefferson’s motion for new trial,
      which granted Jefferson’s motion with regard to two
      counts of armed robbery due to insufficiency of the
      evidence but denied Jefferson’s motion as to all remaining
      counts, was not a final judgment that could be
      immediately appealed under OCGA § 5-6-34 (a) (1)?

We answer this question in the affirmative because, as more fully

explained below, the trial court’s order on Jefferson’s motion for a

new trial left no part of the case pending for trial court resolution

and was, therefore, final within the meaning of OCGA § 5-6-34 (a).1

Thus, the trial court’s order was directly appealable. Consequently,

we vacate the dismissal order and remand the case to the Court of

Appeals.

      The facts relevant to the question before us are undisputed.

During the hearing on Jefferson’s motion for a new trial, the State

conceded that the evidence presented at trial was legally insufficient

to sustain Jefferson’s armed robbery convictions. The trial court




      1 OCGA § 5-6-34 (a) (1)      provides, in relevant part, that “[a]ppeals may
be taken to the . . . Court of Appeals from the following judgments and rulings
of the superior courts . . . [:] All final judgments, that is to say, where the case
is no longer pending in the court below[.]”
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agreed, and entered an order expressly vacating those convictions

on insufficiency of evidence grounds. The trial court also denied

Jefferson’s motion as to his remaining convictions, finding that

Jefferson’s arguments with respect to those convictions lacked

merit.

     Although the trial court “granted” Jefferson’s motion as to the

armed robbery convictions, the State is legally barred from retrying

Jefferson on those counts given the court’s rationale for its decision.

“[O]nce a reviewing court reverses a conviction solely for

insufficiency of the evidence to sustain the jury’s verdict of guilty,

double jeopardy bars retrial.” Hall v. State, 

 (5) (

) (1979) (citing Burks v. United States, 

(III) (

, 57 LE2d 1) (1978)). See also Green v. State, 

 (1) (

) (2012) (same). Compare Prather v.

State, 

 (1) (

) (2010) (“As a general

rule, a post-conviction reversal or grant of a motion for new trial

which is not based on insufficiency of the evidence does not preclude

retrial.” (citation and punctuation omitted)).

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     Only in rare circumstances not present here might a retrial be

possible following a judicial determination that the evidence

presented in support of the crimes charged was insufficient. If, for

example, the trial court had decided that the evidence was legally

insufficient only because of a change in the substantive law after

trial, then perhaps a retrial might be possible. Although this Court

has yet to decide such a case, the Court of Appeals and other courts

have determined that double jeopardy concerns do not preclude the

State from retrying a defendant when the evidence presented at trial

is rendered insufficient only by a post-trial change in law. See Levin

v. State, 

 (1) (

) (2018), cert.

denied Mar. 4, 2019. See also Levin v. Morales, 

 (

) (2014) (Blackwell, J., concurring.). Because no such

holding was made below and the State does not suggest that this

narrow exception would apply in this case, the trial court’s

conclusion that the evidence was insufficient to support a conviction

on either of the armed robbery counts of the indictment renders its

decision with respect to those counts final, as Jefferson may not be

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retried on those counts.

      Further, we note that the Court of Appeals’ reliance on State v.

Ware, 

 (

) (2007), for the proposition that the

trial court’s order was not final was misplaced. Ware did not address

whether a defendant may bring a direct appeal when a new trial is

granted in part on insufficiency of evidence grounds. Rather, the

State appealed from an order granting the defendant a new trial on

all counts on ineffective assistance of counsel grounds. We held that

former OCGA § 5-7-2, governing appeals by the State, did not permit

a direct appeal from a judgment granting a motion for a new trial

because the judgment was not final and “OCGA § 5-7-2 plainly

requires a certificate of immediate review in any criminal case

where the State appeals from a non-final order, decision, or

judgment, except for those cases which involve a motion for

suppression of evidence.” Ware, 

.2 Finally, although


      2 Ware was based on a previous version of OCGA § 5-7-2, which was

amended in 2011 to specifically allow the State to appeal directly from an order
granting a motion for new trial. See Ga. L. 2011, p. 612, § 1. That Code section
now provides that, “[f]or purposes of this Code section, the granting of a motion

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we do not reach Jefferson’s alternative argument that an appellate

court may retain jurisdiction of an appeal even when viable counts

of an indictment remain pending in the trial court, we note that the

case law upon which Jefferson relies did not clearly present such a

situation but, rather, appears to have presented the situation in the

instant case.3

      Judgment vacated and case remanded. All the Justices concur.



                    DECIDED FEBRUARY 1, 2021.
     Certiorari to the Court of Appeals of Georgia.
     Zell & Zell, Rodney S. Zell, for appellant.
     Marie G. Broder, District Attorney, Elizabeth A. Baker, B.
Ashton Fallin, Assistant District Attorneys, for appellee.




for new trial or an extraordinary motion for new trial shall be considered a
final order.” OCGA § 5-7-2 (c).
       3 In each of the cases from this Court cited by Jefferson, the trial court

denied the motion for a new trial as to murder charges but granted the motion,
apparently on insufficiency of evidence grounds, with respect to another count.
See Moore v. State, 

, 251 n.1 (

) (2019) (criminal street
gang activity count set aside by trial court); Wilson v. State, 

, 83 n.1
(

) (2017) (evidence insufficient on financial transaction card fraud
count).
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