Miller v. State, 592 S.E.2d 450 (Ga. Ct. App. 2003). · Go Syfert
Miller v. State, 592 S.E.2d 450 (Ga. Ct. App. 2003). Cases Citing This Book View Copy Cite
“pre-sentence hearing requirements of ocga 17-10-2, are procedural and not substantive in nature”
65 citation events (65 in the last 25 years) across 1 distinct court.
Strongest positive: Mosley v. State (gactapp, 2009-11-13)
Treatment trajectory · 2004 → 2026 · click a year to view as-of
2004 2015 2026
Top citers, strongest first. 28 distinct citers. How cited ↗
discussed Cited as authority (quoted) Mosley v. State (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2009 · quote attribution · 1 verbatim quote · confidence low
pre-sentence hearing requirements of ocga 17-10-2, are procedural and not substantive in nature
cited Cited as authority (rule) Ochiagha Onyemobi v. Ijeoma Onyemobi
Ga. Ct. App. · 2025 · confidence medium
Miller v. State, 264 Ga. App. 801, 802 ( 592 SE2d 450 ) (2003).
cited Cited as authority (rule) Tony Maurice Howard v. State
Ga. Ct. App. · 2024 · confidence medium
“A defendant is not entitled to a second direct appeal from his judgment of conviction.” Miller v. State, 264 Ga. App. 801, 803 (b) ( 592 SE2d 450 ) (2003) (citation and punctuation omitted).
discussed Cited as authority (rule) Eugene Jerome Howard v. State
Ga. Ct. App. · 2023 · confidence medium
It is well established that “[a] defendant is not entitled to a second direct appeal from his judgment of conviction.” Miller v. State, 264 Ga. App. 801, 803 (b) ( 592 SE2d 450 ) (2003) (citation and punctuation omitted).
cited Cited as authority (rule) Ted Andrew Jefferson v. State
Ga. Ct. App. · 2022 · confidence medium
Moreover, “[a] defendant is not entitled to a second direct appeal from his judgment of conviction.” Miller v. State, 264 Ga. App. 801, 803 (b) ( 592 SE2d 450 ) (2003) (punctuation omitted).
cited Cited as authority (rule) Wallace Chambers, Jr. v. State
Ga. Ct. App. · 2022 · confidence medium
Miller v. State, 264 Ga. App. 801, 803 (b) ( 592 SE2d 450 ) (2003).
cited Cited as authority (rule) Lucious Johnson v. State
Ga. Ct. App. · 2020 · confidence medium
Miller v. State, 264 Ga. App. 801, 803 (b) ( 592 SE2d 450 ) (2003).
cited Cited as authority (rule) Ronald L. Clemons v. State
Ga. Ct. App. · 2019 · confidence medium
Miller v. State, 264 Ga. App. 801, 803 (b) ( 592 SE2d 450 ) (2003).
cited Cited as authority (rule) Christopher Matthew Ford v. Cynthia Avery Ford
Ga. Ct. App. · 2018 · confidence medium
Miller v. State, 264 Ga. App. 801, 802 ( 592 SE2d 450 ) (2003).
discussed Cited as authority (rule) James Lewis Kilgore v. State
Ga. Ct. App. · 2014 · confidence medium
However, “our jurisdictional review is [also] guided by the principle that courts are not bound by the designation given motions by the parties 2 and that we look to substance over nomenclature.” Miller v. State, 264 Ga. App. 801, 803 (b) ( 592 SE2d 450 ) (2003) (citation and punctuation omitted).
discussed Cited as authority (rule) Kilgore v. State
Ga. Ct. App. · 2014 · confidence medium
However, “our jurisdictional review is [also] guided by the principle that courts are not bound by the designation given motions by the parties and that we look to substance over nomenclature.” Miller v. State, 264 Ga. App. 801, 803 (b) ( 592 SE2d 450 ) (2003) (citation and punctuation omitted).
discussed Cited as authority (rule) Jason Torres v. Cassandra Elkin
Ga. Ct. App. · 2012 · confidence medium
It is well established that this Court has a solemn duty to inquire into our jurisdiction to review the errors enumerated on appeal,5 and it is a duty we do not take lightly.6 At the same time, this Court is also charged with avoiding the dismissal of an appeal and reaching the merits of a case whenever it is reasonable to do so.7 After conducting such an inquiry in this matter, we find that we have jurisdiction over this appeal. 4 See Waye, 289 Ga. App. at 84 . 5 See Coleman v. State, 305 Ga. App. 680, 680 ( 700 SE2d 668 ) (2010); Miller v. State, 264 Ga. App. 801, 802 ( 592 SE2d 450 ) (2003)…
cited Cited as authority (rule) Torres v. Elkin
Ga. Ct. App. · 2012 · confidence medium
See Coleman v. State, 305 Ga. App. 680, 680 ( 700 SE2d 668 ) (2010); Miller v. State, 264 Ga. App. 801, 802 ( 592 SE2d 450 ) (2003).
discussed Cited as authority (rule) Fulton County Board of Assessors v. Calliope Properties, LLC
Ga. Ct. App. · 2011 · confidence medium
But Calliope’s motion did not specifically invoke OCGA § 9-10-132, and, in any event, “courts are not bound by the designation given motions by the parties,” but rather “look to substance over nomenclature.” (Citation and punctuation omitted.) Miller v. State, 264 Ga. App. 801, 803 (b) ( 592 SE2d 450 ) (2003).
examined Cited as authority (rule) State v. Smith (3×) also: Cited "see, e.g."
Ga. Ct. App. · 2011 · confidence medium
State, 264 Ga. App. 801, 802 ( 592 SE2d 450 ) (2003) (same).
discussed Cited as authority (rule) Ward v. State
Ga. Ct. App. · 2009 · confidence medium
Adams and Doyle, JJ., concur. 1 Ward v. State, 242 Ga. App. 246 ( 529 SE2d 378 ) (2000). 2 King v. State, 295 Ga. App. 865, 865 (1) ( 673 SE2d 329 ) (2009). 3 Watts v. State, 261 Ga. App. 29 ( 581 SE2d 625 ) (2003). 4 Felder v. State, 274 Ga. 870, 871 ( 561 SE2d 88 ) (2002). 5 Jordan v. State, 253 Ga. App. 510, 511 (1) ( 559 SE2d 528 ) (2002). 6 Jones v. State, 278 Ga. 669, 670 ( 604 SE2d 483 ) (2004). 7 Brown v. State, 295 Ga. App. 66, 67 ( 670 SE2d 867 ) (2008). 8 Diaz v. State, 279 Ga. App. 134, 136 ( 630 SE2d 618 ) (2006). 9 Miller v. State, 264 Ga. App. 801, 804 (c) ( 592 SE2d 450 ) (2003…
cited Cited as authority (rule) Thompson v. State
Ga. Ct. App. · 2008 · confidence medium
Miller v. State, 264 Ga. App. 801, 804 (c) ( 592 SE2d 450 ) (2003).
discussed Cited as authority (rule) Segura v. State
Ga. Ct. App. · 2006 · confidence medium
Skandalakis, District Attorney, Andrea A. Newton, As sistant District Attorney, for appellee. 1 See Miller v. State, 264 Ga. App. 801, 802 ( 592 SE2d 450 ) (2003). 2 OCGA § 5-6-38 (a). 3 See Simmons v. State, 228 Ga. App. 470 ( 491 SE2d 908 ) (1997); Campbell v. State, 192 Ga App. 316 ( 385 SE2d 14 ) (1989). 4 Simmons, supra; Campbell, supra. 5 Gibbs v. State, 213 Ga. App. 117, 118 ( 443 SE2d 708 ) (1994). 6 (Citation and punctuation omitted.) Jackson v. State, 274 Ga. App. 26, 28 (2) (619 SE2 294) (2005). 7 See Jowers v. State, 245 Ga. App. 773, 775 (5) ( 538 SE2d 853 ) (2000). 8 (Punctuatio…
cited Cited as authority (rule) Carter v. State
Ga. Ct. App. · 2005 · confidence medium
Jackson v. State, 273 Ga. 320 ( 540 SE2d 612 ) (2001); Miller v. State, 264 Ga. App. 801, 803 (b) ( 592 SE2d 450 ) (2003).
discussed Cited as authority (rule) Johnson v. State (2×)
Ga. Ct. App. · 2005 · confidence medium
“In the absence of a change in the evidence or the law, [Johnson] is not entitled to multiple bites at the apple.” (Punctuation and footnote omitted.) Miller v. State, 264 Ga. App. 801, 804 (c) ( 592 SE2d 450 ) (2003); Miller v. State, 264 Ga. App. 801, 804 (c) ( 592 SE2d 450 ) (2003); Jackson v. State, 273 Ga. 320 ( 540 SE2d 612 ) *295 (2001); Daniels v. State, 244 Ga. App. 522 ( 536 SE2d 206 ) (2000).
discussed Cited as authority (rule) Clark v. State
Ga. Ct. App. · 2004 · confidence medium
“A defendant is not entitled to a second direct appeal from his judgment of conviction.” (Footnote and punctuation omitted.) Miller v. State, 264 Ga. App. 801, 803 (b) ( 592 SE2d 450 ) (2003). “[W]heii a defendant attempts such a second appeal, it is improper and shoüld be dismissed.” (Footnote omitted.) Miller v. State, 277 Ga. 372 ( 589 SE2d 108 ) (2003).
discussed Cited "see" Tracy Wright, Jr. v. State (2×)
Ga. Ct. App. · 2021 · signal: see · confidence high
See Miller v. State, 264 Ga. App. 801, 803 (b) ( 592 SE2d 450 ) (2003).
discussed Cited "see" David Edmond Rogers v. State (2×)
Ga. Ct. App. · 2017 · signal: see · confidence high
See Miller v. State, 264 Ga. App. 801, 803 (b) ( 592 SE2d 450 ) (2003).
discussed Cited "see" Thornton v. State (2×)
Ga. Ct. App. · 2013 · signal: see · confidence high
See Miller v. State, 264 Ga. App. 801, 803 (b) ( 592 SE2d 450 ) (2003) (noting that in reviewing filings, we look to substance over nomenclature).
discussed Cited "see" Latoya Thornton v. State (2×)
Ga. Ct. App. · 2013 · signal: see · confidence high
See Miller v. State, 264 Ga. App. 801, 803 (b) ( 592 SE2d 450 ) (2003) (noting that in reviewing filings, we look to substance over nomenclature).
discussed Cited "see" Coleman v. State (2×)
Ga. Ct. App. · 2010 · signal: see · confidence high
See Miller v. State, 264 Ga. App. 801, 802 ( 592 SE2d 450 ) (2003). [A] sentence that is void for any reason is a mere nullity and may be vacated at any time in any court where it becomes material to the interest of the parties to consider it.
discussed Cited "see" McMahon v. State (2×)
Ga. Ct. App. · 2007 · signal: see · confidence high
See Miller v. State, 264 Ga. App. 801, 802 (a) ( 592 SE2d 450 ) (2003) (appellate review of whether defendant is unable to pay restitution not ripe without current harm such as revocation of probation or failure to pay restitution).
discussed Cited "see" In the Interest of C. S. (2×)
Ga. Ct. App. · 2006 · signal: see · confidence high
See Miller v. State, 264 Ga. App. 801, 803-804 (c) ( 592 SE2d 450 ) (2003); compare In the Interest of I.
Retrieving the full opinion text from the archive…
Miller
v.
the State
A03A2453.
Court of Appeals of Georgia.
Dec 16, 2003.
592 S.E.2d 450
Richard A. Miller, pro se., T. Joseph Campbell, District Attorney, Erik J. Pirozzi, Assistant District Attorney, for appellee.
Eldridge, Johnson, Mikell.
Cited by 31 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 87%
Citer courts: Court of Appeals of Georgia (1)
Eldridge, Judge.

Richard A. Miller appeals from an order of the Bartow County Superior Court denying his “Motion to Amend Restitution Order.” For the reasons that follow, we dismiss the instant appeal.

After separate jury trials under Indictment Nos. 97-1248 and 97-1244, respectively, Miller was found guilty on, inter alia, 13 counts of first degree forgery. A sentencing hearing was held in each case, wherein restitution to the victims was recommended by the State. Following each sentencing hearing, the trial court sentenced Miller to jail time followed by a probationary period. Restitution was ordered as a condition of probation and was to be paid “in accordance with a schedule of payments” to be determined by the probation officer. Restitution payments were to begin “30 days after prison release.” The amount of restitution was not in dispute, since the evidence at trial as reflected in the jury’s verdict showed beyond a reasonable doubt that Miller had uttered checks and received cash totaling $7,957.77 under Indictment No. 97-1244 and $838.45 under Indictment No. 97-1248. Nor did Miller contest his ability to pay the ordered restitution.

Thereafter, Miller appealed to this Court separately from the[*802] judgment and sentence entered on each indictment. [1] No issue regarding sentencing was raised in either appeal. In each case, this Court affirmed the judgment and sentence entered on the jury’s verdict. [2]

Several years later, Miller filed the instant “Motion to Amend Restitution Order” claiming that, at the time restitution was ordered during sentencing, the trial court failed to make specific findings about his ability to pay restitution as required by OCGA §§ 17-14-8 and 17-14-10, and thus, his sentence of restitution was improper. He claims that — at the time of sentencing — physical disabilities and chronic unemployment precluded his ability to pay restitution. The trial court denied the motion, finding it to be both untimely filed and unsupported by any evidence of an inability to pay. Held:

“It is the duty of this Court on its own motion to inquire into its jurisdiction to review the errors alleged on appeal.” [3]

a. This case does not come to us by virtue of a revocation of Miller’s probation for failure to pay restitution. In fact, there is no licit evidence of record that restitution is not currently being made to the victim. Consequently, a motion to amend restitution would appear premature in this case since, absent revocation or even a petition seeking revocation, there is no harm to Miller arising from the trial court’s order. And it is axiomatic that “both error and harm must be shown to warrant a reversal on appeal.” [4]

The record does not indicate that probation revocation proceedings have been instituted against defendant for failure to pay the restitutionary amount or that, in fact, restitution is not properly being made to the victim. . . . When a defendant brings a case here he must show error which has hurt him. This court is not an expounder of theoretical law, but it administers practical law, and corrects only such errors as have practically wronged the complaining party. In his brief [defendant] contends that he has been hurt because he has been threatened with probation revocation proceedings. . . . These facts, however, are unsupported by the record [since defendant’s probation has not been revoked and a petition seeking revocation has not been filed]. This court will not engage in mere speculation. [5]

[*803] b. Further, our jurisdictional review is guided by the principle that “courts are not bound by the designation given motions by the parties and that we look to substance over nomenclature.” [6] In that regard, although Miller styled his pleading a “Motion to Amend Restitution Order,” the substance of the motion seeks to vacate that portion of the original judgment and sentence ordering restitution because of the trial court’s failure to comply with OCGA §§ 17-14-8 and 17-14-10. [7] In furtherance of this claim, Miller is also alleging ineffective assistance of trial counsel because his attorney failed to object to the imposition of the judgment and sentence absent compliance with OCGA §§ 17-14-8 and 17-14-10. This attack on the original judgment and sentence imposed by the trial court is subject to direct appeal. [8]

Miller, however, has already had a direct appeal from each judgment and sentence he now wishes to challenge, and this Court has affirmed each. He alleges no change of condition or any new factors for consideration; instead, in order to support his current claims, Miller relies solely on circumstances as they existed at the time of the entry of judgment. “[A] defendant is not entitled to a second direct appeal from his judgment of conviction.” [9] A defendant who has had a conviction affirmed on direct appeal may obtain further review of the judgment of conviction “by filing an extraordinary motion for new trial or a petition for writ of habeas corpus.” [10]

c. Notably, Miller does not claim that his sentence is “void” for failure to comply with OCGA §§ 17-14-8 and 17-14-10.* [11] Indeed, such assertion would be unavailing, since clearly Miller’s sentence to probation with restitution as a condition of probation is a “sentence [ ] allowed under the law.” [12] The requirements of OCGA §§ 17-14-8 and 17-14-10, like the pre-sentence hearing requirements of OCGA § 17-10-2, are procedural and not substantive in nature. And the failure to adhere to such procedures, while subject to timely appellate review[*804] as to whether sentence was “lawfully imposed,” [13] does not render sentences imposed without such procedures “void” so as to secure appellate review absent a legitimate claim of “void sentence.” [14]

Decided December 16, 2003. Richard A. Miller, pro se. T. Joseph Campbell, District Attorney, Erik J. Pirozzi, Assistant District Attorney, for appellee.
Looking at the substance of the motions rather than their nomenclature, the motions did not seek to vacate a void sentence, see OCGA § 17-9-4, but rather constituted improper attempts by [Miller] to obtain a second appeal from [his] convictions. [15]

Before this Court, Miller raises no issue authorizing a second appeal of the judgment and sentence entered on the jury’s verdict in either Indictment No. 97-1248 or No. 97-1244, and the instant contention could have been raised in either or both of his prior direct appeals. The fact that Miller’s current claim of error differs from those raised previously “does not alter the binding effect of our previous opinion[s]. In the absence of a change in the evidence or the law, [Miller] is not entitled to multiple bites at the apple.” [16] This appeal is dismissed.

Appeal dismissed.

Johnson, P. J., and Mikell, J., concur.
1

Miller v. State, 235 Ga. App. 724 (510 SE2d 560) (1998); Miller v. State, 233 Ga. App. 814 (506 SE2d 136) (1998).

2

Id.

3

(Footnote omitted.) Hurt v. Norwest Mtg., 260 Ga. App. 651, 654 (1) (580 SE2d 580) (2003).

4

(Footnote omitted.) Richardson v. State, 253 Ga. App. 555, 556 (1) (560 SE2d 65) (2002).

5

(Citations and punctuation omitted.) Morrison v. State, 181 Ga. App. 440, 443 (352 SE2d 622) (1987).

6

(Citations omitted.) Cain v. State, 275 Ga. 784, 786 (573 SE2d 46) (2002).

7

See OCGA § 17-14-2 (8) (“ ‘Restitution order’ means any order, decree, or judgment of an ordering authority which requires an offender to make restitution as a condition or term of any relief granted to an offender.”).

9

Richards v. State, 275 Ga. 190, 191 (563 SE2d 856) (2002), citing Jackson v. State, 273 Ga. 320 (540 SE2d 612) (2001). See also Cox v. Hillyer, 65 Ga. 57 (1) (1880) (general rule is that second appeal is not permitted from a criminal judgment of conviction affirmed on appeal); Grant v. State, 159 Ga. App. 2, 3 (282 SE2d 668) (1981).

10

Richards v. State, supra at 191, n. 1, citing Grant v. State, supra.

11

Compare Williams v. State, 271 Ga. 686, 689 (1) (523 SE2d 857) (1999) (“a direct appeal should lie from the denial of a motion attacking a sentence on the ground that it is void”).

12

Id. at 690-691 (2) (“a sentence is void if the court imposes punishment that the law does not allow”) (citation, punctuation and footnote omitted). See Morrison v. State, supra at 441 (court-ordered restitution may be imposed as a condition of probation).

13

See, e.g., Morrison v. State, supra at 440 (“This [C]ourt is not empowered to modify a sentence which is within the statutory limits and lawfully imposed. [Cit.] Thus, our initial inquiry is whether the sentence was properly imposed by the trial court.”) (punctuation omitted).

14

Williams v. State, supra at 691 (“a sentence imposed by a trial court in a non-death penalty case is not rendered void by the court’s failure to conduct a presentence hearing under OCGA § 17-10-2”); accord Turner a State, 259 Ga. App. 902 (1) (578 SE2d 570) (2003).

15

Felder v. State, 274 Ga. 870, 871 (561 SE2d 88) (2002).

16

Day v. State, 242 Ga. App. 899, 901 (2) (531 SE2d 781) (2000); accord Mann v. State, 259 Ga. App. 553, 554 (2) (578 SE2d 238) (2003). See also Jackson v. State, supra at 320 (“[Defendant] did appeal, and his contentions were given due consideration. He is not entitled to another bite at the apple by way of a second appeal.”), citing South Ga. Med. Center v. Washington, 269 Ga. 366, 367 (1) (497 SE2d 793) (1998) (an appellate ruling in a case is binding in all subsequent proceedings); Llewellyn v. State, 252 Ga. 426, 428 (2) (314 SE2d 227) (1984) (litigation must come to an end).