Clark motion in Georgia

2023See, e.g., Beamon v. State, 314 Ga. 798 , 801 n.2 ( 879 SE2d 457 ) (2022). 19 standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction’”) (citation omitted).

2023See, e.g., Beamon v. State, 314 Ga. 798 , 801 n.2 ( 879 SE2d 457 ) (2022). 19 standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction’”) (citation omitted).

2025Hill, 310 Ga. at 194 (11) (a) (citation and punctuation omitted).

2025Hill, 310 Ga. at 194 (11) (a) (citation and punctuation omitted).

2025See Lockhart, 298 Ga. at 385 (2) (“We accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (citation and punctuation omitted)).

2025See Lockhart, 298 Ga. at 385 (2) (“We accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (citation and punctuation omitted)).

2024When, as here, statutory text is clear and unambiguous, our interpretive task begins and ends with the text itself.[4] 3 At the hearing on Clark’s motion to terminate probation, the State conceded that Clark satisfied the requirements of OCGA § 17-10-1 (a) (1) (B) (i) and was “eligible” for potential termination. 4 As a result, Clark’s extended focus on legislative summaries and “[a] brief review of the historical reasons for the creation of OCGA § 17-10-1 (a) (1) (B)” in his 7 (Citation and punctuation omitted.) Bell v. Hargrove, 313 Ga. 30, 32 (2) ( 867 SE2d 101 ) (2021).

2024Application of the statute, and, thus, the manner in which Clark may benefit from it, initially turns upon the use of the word “shall.” “‘Shall’ is generally construed as a word of command.” Mead v. Sheffield, 278 Ga. 268, 269 ( 601 SE2d 99 ) (2004); see also Lewis v. State, 283 Ga. 191, 194 (3) ( 657 SE2d 854 ) (2008) (“for the purposes of statutory construction, the word ‘shall’ is to be generally construed as a mandatory directive”).

2024Application of the statute, and, thus, the manner in which Clark may benefit from it, initially turns upon the use of the word “shall.” “‘Shall’ is generally construed as a word of command.” Mead v. Sheffield, 278 Ga. 268, 269 ( 601 SE2d 99 ) (2004); see also Lewis v. State, 283 Ga. 191, 194 (3) ( 657 SE2d 854 ) (2008) (“for the purposes of statutory construction, the word ‘shall’ is to be generally construed as a mandatory directive”).

2024Application of the statute, and, thus, the manner in which Clark may benefit from it, initially turns upon the use of the word “shall.” “‘Shall’ is generally construed as a word of command.” Mead v. Sheffield, 278 Ga. 268, 269 ( 601 SE2d 99 ) (2004); see also Lewis v. State, 283 Ga. 191, 194 (3) ( 657 SE2d 854 ) (2008) (“for the purposes of statutory construction, the word ‘shall’ is to be generally construed as a mandatory directive”).

2024Application of the statute, and, thus, the manner in which Clark may benefit from it, initially turns upon the use of the word “shall.” “‘Shall’ is generally construed as a word of command.” Mead v. Sheffield, 278 Ga. 268, 269 ( 601 SE2d 99 ) (2004); see also Lewis v. State, 283 Ga. 191, 194 (3) ( 657 SE2d 854 ) (2008) (“for the purposes of statutory construction, the word ‘shall’ is to be generally construed as a mandatory directive”).

2023See, e.g., Beamon v. State, 314 Ga. 798 , 800 n.2 ( 879 SE2d 457 ) (2022). 19 Fitts, 312 Ga. at 141 .

2023Clark’s claim therefore fails.20 See Holmes v. State, 311 Ga. 698, 706 20 Because Clark contends only that the trial court applied the wrong legal test and does not contend that the court erred in concluding that he 37 (859 SE2d 475) (2021) (“‘Trial judges . . . are presumed to know the law and apply it in making their decisions, absent some indication in the record suggesting otherwise.’”) (citation omitted).

2023Clark’s claim therefore fails.20 See Holmes v. State, 311 Ga. 698, 706 20 Because Clark contends only that the trial court applied the wrong legal test and does not contend that the court erred in concluding that he 37 (859 SE2d 475) (2021) (“‘Trial judges . . . are presumed to know the law and apply it in making their decisions, absent some indication in the record suggesting otherwise.’”) (citation omitted).

2023See also Drennon v. State, 314 Ga. 854, 860 (880 SE2d 139) (2022) (explaining that when a trial court evaluates the general grounds as the “thirteenth juror,” we presume that the court understood the nature of its discretion and exercised it, unless the record shows otherwise, even if the court did not explicitly speak of its discretion with respect to the general grounds). 4.

2023See also Drennon v. State, 314 Ga. 854, 860 (880 SE2d 139) (2022) (explaining that when a trial court evaluates the general grounds as the “thirteenth juror,” we presume that the court understood the nature of its discretion and exercised it, unless the record shows otherwise, even if the court did not explicitly speak of its discretion with respect to the general grounds). 4.

2023Cook also concluded that this holding would apply to “all cases that are currently on direct review or otherwise not yet final[,]” id., and directed that “pending and future motions for out-of-time appeals in trial courts should be dismissed, and trial court orders that have decided such motions on the merits . . . should be vacated if direct review of the case remains pending or if the case is otherwise not final.” Id. at 505 (4) Accordingly, the trial court’s order denying Clark’s motion for an out-of-time appeal is VACATED, and this case is REMANDED for the entry of an order dismissing Clar

2023Cook also concluded that this holding would apply to “all cases that are currently on direct review or otherwise not yet final[,]” id., and directed that “pending and future motions for out-of-time appeals in trial courts should be dismissed, and trial court orders that have decided such motions on the merits . . . should be vacated if direct review of the case remains pending or if the case is otherwise not final.” Id. at 505 (4) Accordingly, the trial court’s order denying Clark’s motion for an out-of-time appeal is VACATED, and this case is REMANDED for the entry of an order dismissing Clar

2021But as discussed above, even if Clark’s trial counsel had objected to the withdrawal, the trial court was not required to enforce the plea, see Gramiak, 304 Ga. at 520 (I) (D), and in the order denying Clark’s motion for new trial the trial court made it abundantly clear that she would not have accepted the plea on account of the jail calls.

2021So any effort by Clark’s trial counsel to enforce a plea agreement would have been futile. 8 “The failure to pursue a futile objection does not amount to ineffective assistance.” Ventura v. State, 284 Ga. 215, 218 (4) ( 663 SE2d 149 ) (2008).

2021So any effort by Clark’s trial counsel to enforce a plea agreement would have been futile. 8 “The failure to pursue a futile objection does not amount to ineffective assistance.” Ventura v. State, 284 Ga. 215, 218 (4) ( 663 SE2d 149 ) (2008).

2021In his appellate brief, Clark “does not urge that the trial court erred in failing to enforce any agreed-upon plea bargain, nor does he otherwise specify any error allegedly committed by the trial court [in connection with the state’s withdrawal of the plea offer].” Umbehaum v. State, 251 Ga. App. 471, 473 (3) ( 554 SE2d 608 ) (2001).

2021In his appellate brief, Clark “does not urge that the trial court erred in failing to enforce any agreed-upon plea bargain, nor does he otherwise specify any error allegedly committed by the trial court [in connection with the state’s withdrawal of the plea offer].” Umbehaum v. State, 251 Ga. App. 471, 473 (3) ( 554 SE2d 608 ) (2001).

2020See Collier, 307 Ga. at 364 . 4 under the circumstances presented in this case, we vacate the trial court’s judgment and remand “for the court to conduct an evidentiary hearing and determine whether plea counsel’s ineffective assistance was responsible for [Clark’s] failure to pursue a timely appeal.” Rutledge, 309 Ga. at 510 .

2020However, the trial court denied Clark’s motion without conducting a factual inquiry into his claim of ineffective assistance.4 Accordingly, as the State concedes we should 3 To determine whether a criminal defendant has been deprived of the effective assistance of plea counsel, such as to entitle him to bring an out-of- time appeal, a court must utilize the “familiar standard of Strickland v. Washington, 466 U.S. 668 ( 104 SCt 2052 , 80 LE2d 674) (1984).” Collier, 307 Ga. at 364-365 (citation and punctuation omitted).

2020The defendant does not need to demonstrate that his underlying claims are meritorious, however, or “that he would have actually prevailed in a timely appeal.” Id. (citation and punctuation omitted). 4 We note that the trial court ruled on Clark’s motion for out-of-time appeal before we decided Collier, in which we overruled much of our existing precedent concerning motions for out-of-time appeals filed after the entry of guilty pleas.

2020See Fisher, 299 Ga. at 483-485 .

2019See, e.g., Scott v. State, 306 Ga. 417, 420 (2) ( 831 SE2d 813 ) (2019); Jackson v. State, 306 Ga. 266, 273 (5) (a) ( 830 SE2d 99 ) (2019).

2019See, e.g., Scott v. State, 306 Ga. 417, 420 (2) ( 831 SE2d 813 ) (2019); Jackson v. State, 306 Ga. 266, 273 (5) (a) ( 830 SE2d 99 ) (2019).

2019See, e.g., Scott v. State, 306 Ga. 417, 420 (2) ( 831 SE2d 813 ) (2019); Jackson v. State, 306 Ga. 266, 273 (5) (a) ( 830 SE2d 99 ) (2019).

2019See, e.g., Scott v. State, 306 Ga. 417, 420 (2) ( 831 SE2d 813 ) (2019); Jackson v. State, 306 Ga. 266, 273 (5) (a) ( 830 SE2d 99 ) (2019).

2019G., 350 Ga. App. at 595 (3) (vacating and remanding where court’s order failed to consider the relevant factors in Clark and “made no explicit findings” indicating the grandmother presented evidence showing harm to the child or the best interest of the child) (emphasis in original); Floyd v. Gibson, 337 Ga. App. 474, 479 (1) ( 788 SE2d 84 ) (2016) (vacating and remanding the case for reconsideration a second time because it was unclear that the trial court conducted the requisite substantive analysis of the Clark factors supported by findings of fact, noting that “[w]e cannot apply the appropr

2019G., 350 Ga. App. at 595 (3) (vacating and remanding where court’s order failed to consider the relevant factors in Clark and “made no explicit findings” indicating the grandmother presented evidence showing harm to the child or the best interest of the child) (emphasis in original); Floyd v. Gibson, 337 Ga. App. 474, 479 (1) ( 788 SE2d 84 ) (2016) (vacating and remanding the case for reconsideration a second time because it was unclear that the trial court conducted the requisite substantive analysis of the Clark factors supported by findings of fact, noting that “[w]e cannot apply the appropr

2016See Floyd, 331 Ga. App. at 303-304 (1).

2016See Floyd, 331 Ga. App. at 303-304 (1).

2014Group, Inc. v. Hartley, 301 Ga. App. 812, 823-24 (4) ( 689 SE2d 107 ) (2009) (holding that evidence that employer terminated employee and denied her deferred compensation payments based on an improper motive was sufficient to support award of attorney fees for bad faith in employee’s breach of contract action); ISS Int’l Serv.

2014Group, Inc. v. Hartley, 301 Ga. App. 812, 823-24 (4) ( 689 SE2d 107 ) (2009) (holding that evidence that employer terminated employee and denied her deferred compensation payments based on an improper motive was sufficient to support award of attorney fees for bad faith in employee’s breach of contract action); ISS Int’l Serv.

2008See Miller Distributing Co. v. Rollins, supra. Accordingly, we conclude that the trial court did not commit reversible error in permitting the victim’s written statements to go out with the jury, because the statements were consistent with the theory of Clark’s defense.

2008This Court having resolved the enumeration “upon which the Court of Appeals was evenly divided as to affirmance or reversal, the case is hereby returned to that court for consideration of [Clark’s] remaining enumeration of error. [Cit.]” MARTA v. Leibowitz, 264 Ga. 486, 487 (2) ( 448 SE2d 435 ) (1994).

2008This Court having resolved the enumeration “upon which the Court of Appeals was evenly divided as to affirmance or reversal, the case is hereby returned to that court for consideration of [Clark’s] remaining enumeration of error. [Cit.]” MARTA v. Leibowitz, 264 Ga. 486, 487 (2) ( 448 SE2d 435 ) (1994).

2008“As a general rule, allowing the written statement of an alleged victim to go out with a jury violates the continuing witness rule. [Cit.]” Kent v. State, 245 Ga. App. 531, 533 (3) ( 538 SE2d 185 ) (2000).

2008“As a general rule, allowing the written statement of an alleged victim to go out with a jury violates the continuing witness rule. [Cit.]” Kent v. State, 245 Ga. App. 531, 533 (3) ( 538 SE2d 185 ) (2000).