Strickland v. State, 373 S.E.2d 736 (Ga. 1988). · Go Syfert
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Strickland v. State, 373 S.E.2d 736 (Ga. 1988). Cases Citing This Book View Copy Cite
48 citation events (40 in the last 25 years) across 2 distinct courts.
Strongest positive: Sanders v. State (ga, 2022-02-15)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 18 distinct citers.
discussed Cited as authority (rule) Sanders v. State (2×)
Ga. · 2022 · confidence medium
See State v. LeJeune, 276 Ga. 179, 184 (3), (4) (576 SE2d 888) (2003) (trial court’s granting the State’s request for order of nolle prosequi of a second indictment, following the quashing of the first indictment, did not trigger the statute barring the State from continuing to prosecute a defendant if a trial court has twice quashed charges against him, and the filing of a notice of appeal as to the first indictment did not divest the trial court of jurisdiction to grant the State’s petition for a nolle prosequi order as to the second indictment); Strickland v. State, 258 Ga. 764, 765 (…
discussed Cited as authority (rule) Mike Jethro Azubike Redford v. State
Ga. Ct. App. · 2020 · confidence medium
See Moon v. State, 287 Ga. 304, 305 ( 696 SE2d 55 ) (2010) (pendency of appeal from order granting motion to suppress did not prevent the trial court from hearing a timely filed motion for reconsideration); Strickland v. State, 258 Ga. 764, 765-766 (1) ( 373 SE2d 736 ) (1988) (trial court retains the power to amend its order denying a plea of former jeopardy, nunc pro tunc, to find the plea dilatory and frivolous).
discussed Cited as authority (rule) Brown v. State (2×)
Ga. Ct. App. · 2013 · confidence medium
Thus, in a criminal case, “[f]iling a notice of appeal may deprive a court of its power to execute the sentence but it does not supersede every other activity of a trial court.” (Citation and footnote omitted.) Strickland v. State, 258 Ga. 764, 765-766 (1) ( 373 SE2d 736 ) (1988).
discussed Cited as authority (rule) Dwight T. Brown v. State (2×)
Ga. Ct. App. · 2013 · confidence medium
Thus, in a criminal case, “[f]iling a notice of appeal may deprive a court of its power to execute the sentence but it does not supersede every other activity of a trial court.” (Citation and footnote omitted.) Strickland v. State, 258 Ga. 764, 765-766 (1) ( 373 SE2d 736 ) (1988). 5 As the Roberts opinion noted, for example, in Strickland,3 the Supreme Court found that the filing of a notice of appeal does not deprive the trial court of jurisdiction to “amend an order denying a plea of former jeopardy, nunc pro tunc, to find the plea dilatory and frivolous,” even though the pending app…
discussed Cited as authority (rule) Porter v. State
Ga. Ct. App. · 2011 · confidence medium
Smith, P. J., and Dillard, J., concur. 1 Porter v. State, Case No. S10C1665 (October 18, 2010). 2 See OCGA § 5-6-45 (a): “In all criminal cases, the notice of appeal. . . shall serve as supersedeas in all cases where a sentence of death has been imposed or where the defendant is admitted to bail.” 3 Chambers v. State, 262 Ga. 200, 201 (1) ( 415 SE2d 643 ) (1992). 4 See Moon v. State, 287 Ga. 304, 305 ( 696 SE2d 55 ) (2010) (pendency of appeal did not prevent the trial court from hearing a timely filed motion for reconsideration); Strickland v. State, 258 Ga. 764, 765-766 (1) ( 373 SE2d 73…
discussed Cited as authority (rule) Moon v. State (2×)
Ga. · 2010 · confidence medium
“Filing a notice of appeal may deprive a court of its power to execute the sentence but it does not supersede every other activity of a trial court.” Strickland v. State, 258 Ga. 764, 766 (1) ( 373 SE2d 736 ) (1988).
cited Cited as authority (rule) Stewart v. State
Ga. Ct. App. · 2008 · confidence medium
See Carter v. State, 248 Ga. App. 139, 140 (2) ( 546 SE2d 5 ) (2001); Strickland v. State, 258 Ga. 764, 765 ( 373 SE2d 736 ) (1988).
discussed Cited as authority (rule) Roberts v. State
Ga. Ct. App. · 2006 · confidence medium
Filing a notice of appeal may deprive a court of its power to execute the sentence but it does not supersede every other activity of a trial court.” (Footnote omitted.) Strickland v. State, 258 Ga. 764, 765-766 (1) ( 373 SE2d 736 ) (1988), overruled in part on other grounds, Washington v. State, 276 Ga. 655 ( 581 SE2d 518 ) (2003).
cited Cited as authority (rule) Baker v. State
Ga. Ct. App. · 2003 · confidence medium
Strickland v. State, 258 Ga. 764, 765-766 (1) ( 373 SE2d 736 ) (1988).
cited Cited as authority (rule) Callaway v. State
Ga. Ct. App. · 2001 · confidence medium
Strickland v. State, 258 Ga. 764, 765 ( 373 SE2d 736 ) (1988); Dixon v. State, 196 Ga. App. 15, 17-18 ( 395 SE2d 577 ) (1990); Rielli v. Oliver, 170 Ga. App. 699, 700 ( 318 SE2d 173 ) (1984).
cited Cited as authority (rule) Jersawitz v. Riley
Ga. · 1998 · confidence medium
Henry v. James, 264 Ga. 527, 532 (2) ( 449 SE2d 79 ) (1994); Strickland v. State, 258 Ga. 764, 766 (2) ( 373 SE2d 736 ) (1988); Almand v. Brock, 227 Ga. 586, 587 ( 182 SE2d 97 ) (1971).
cited Cited as authority (rule) Murray v. Reese
Ga. Ct. App. · 1993 · confidence medium
Strickland v. State, 258 Ga. 764, 765 (1) ( 373 SE2d 736 ) (1988) citing Waters v. State, 174 Ga. App. 438, 439 ( 330 SE2d 177 ) (1985).
examined Cited "see" Harvey v. State (3×)
Ga. · 2015 · signal: see · confidence high
See Strickland v. State, 258 Ga. 764, 766, n. 1 ( 373 SE2d 736 ) (1988) (suggesting that a merits appeal from a conviction and sentence and an appeal from the earlier denial of a plea in bar could be decided together if the General Assembly required an application to appeal the denial of a plea in bar, which could not happen if the plea in bar appeal prevented the trial court from entering an appealable final judgment sentencing the defendant).
discussed Cited "see" Harvey v. State (2×)
Ga. · 2015 · signal: see · confidence high
See Strickland v. State, 258 Ga. 764, 766, n. 1 ( 373 SE2d 736 ) (1988) (suggesting that a merits appeal from a conviction and sentence and an appeal from the earlier denial of a plea in bar could be decided together if the General Assembly required an application to appeal the denial of a plea in bar, which could not happen if the plea in bar appeal prevented the trial court from entering an appealable final judgment sentencing the defendant).
discussed Cited "see" State v. Lejeune (2×)
Ga. · 2003 · signal: see · confidence high
See Strickland v. State, 258 Ga. 764, 765 (1) ( 373 SE2d 736 ) (1988); Waters v. State, 174 Ga. App. 438, 439 (1) ( 330 SE2d 177 ) (1985).
discussed Cited "see" McAlister v. State (2×)
Ga. Ct. App. · 1999 · signal: see · confidence high
See Strickland v. State, 258 Ga. 764, 765 (1) ( 373 SE2d 736 ). 3.
discussed Cited "see, e.g." Tolbert v. Toole (2×)
Ga. · 2014 · signal: compare · confidence medium
Compare Strickland v. State, 258 Ga. 764, 766 ( 373 SE2d 736 ) (1988) (holding that where the trial court denied a defendant’s motion for discharge and acquittal on double jeopardy grounds but also made an express finding that the motion was “frivolous and dilatory,” the court retained jurisdiction to try the defendant despite his filing of a notice of appeal from the denial).
discussed Cited "see, e.g." State v. Outen (2×)
Ga. · 2014 · signal: see also · confidence medium
See also Strickland v. State, 258 Ga. 764, 765 ( 373 SE2d 736 ) (1988) (explaining that the supersedeas pending appeal of a criminal case, see OCGA § 5-6-45, does not deprive the trial court of jurisdiction over all aspects of the case).
Strickland
v.
the State
46035, 46036.
Supreme Court of Georgia.
Nov 15, 1988.
373 S.E.2d 736
Carl P. Greenberg, for appellant., Robert E. Wilson, District Attorney, Thomas S. Clegg, Assistant District Attorney, for appellee.
Gregory, Smith.
Cited by 21 opinions  |  Published
Gregory, Justice.

Strickland’s murder conviction was reversed by this Court in[*765] Strickland v. State, 257 Ga. 230 (357 SE2d 85) (1987). When the DeKalb County District Attorney announced his intention to retry him, Strickland filed a plea of former jeopardy and motion to dismiss on the ground that the prosecution failed to disprove his involuntary intoxication defense beyond a reasonable doubt. After the trial court denied the plea and motion, Strickland filed a notice of appeal.

At the retrial, Strickland brought the notice of appeal to Judge Fuller’s attention. Strickland alleged that under Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982), his notice of appeal from the plea of former jeopardy acted ás a supersedeas preventing his retrial.

The prosecution responded that under Rielli v. Oliver, 170 Ga. App. 699 (318 SE2d 173) (1984), if a plea of former jeopardy is found to be frivolous and dilatory, the filing of a notice of appeal by a defendant does not divest the trial court of jurisdiction over the case. Judge Fuller then amended his order, nunc pro tunc, to include a finding that the plea was frivolous and dilatory.

Strickland then filed a petition for writ of prohibition, asking that the retrial be prohibited until his appeal was decided. He also asked that another judge be appointed to hear this petition. After Judges Fuller and Tillman recused themselves, Judge Shulman denied the petition and ruled that Judge Fuller properly amended his order. Strickland was retried over his objections.

Case No. 46036

Strickland contends that the trial court erred in amending its order, nunc pro tunc, after he had filed a notice of appeal. In addition, he argues that the trial court erred in denying his petition for writ of prohibition.

1. The Court of Appeals in Rielli held that filing a notice of appeal does not divest a trial court of jurisdiction if the plea of former jeopardy is found to be frivolous and dilatory. 170 Ga. App. at 700. Strickland argues that if the former jeopardy plea is not found to be frivolous and dilatory, then everything a trial court does after the notice of appeal is filed is a nullity, even amending the order nunc pro tunc to find that the plea was frivolous and dilatory. We disagree.

The Court of Appeals in Waters v. State, 174 Ga. App. 438, 439 (330 SE2d 177) (1985) held that “[t]he mere filing of a notice of appeal . . . does not divest the trial court of complete jurisdiction . . . In a criminal case, the filing of a notice of appeal merely deprives the trial court of its ‘power to execute the sentence.’ ” The Court of Appeals then held that the trial court had jurisdiction to entertain the State’s nolle prosequi petition after the notice of appeal from the court’s former jeopardy ruling had been filed. 174 Ga. App. at 439.

Following the reasoning of the Court of Appeals in Waters, we hold that a trial court may amend its order denying a plea of former[*766] jeopardy, nunc pro tunc, to find the plea dilatory and frivolous, even though a notice of appeal has been filed. Filing a notice of appeal may deprive a court of its power to execute the sentence but it does not supersede every other activity of a trial court. [1]

Decided November 15, 1988 Reconsideration denied December 14, 1988. Carl P. Greenberg, for appellant. Robert E. Wilson, District Attorney, Thomas S. Clegg, Assistant District Attorney, for appellee.

2. A writ of prohibition is available only where there is a lack of jurisdiction over the subject matter. Because we hold that the trial court did not exceed its jurisdiction, it follows that the trial court correctly denied the writ of prohibition. See Rielli, 170 Ga. App. at 700.

Case No. 46035

Strickland also argues that the trial court erred in denying his pleas of former jeopardy and motion to dismiss. He contends that as a matter of law the prosecution failed to meet its burden of disproving his involuntary intoxication defense beyond a reasonable doubt. This issue was already resolved against him in Strickland v. State, 257 Ga. 230, 231 (357 SE2d 85) (1987), when we wrote “that a rational trier of fact could have found the defendant guilty of murder beyond a reasonable doubt.”

46035. Judgment affirmed.

All the Justices concur. 46036. Judgment affirmed. All the Justices concur, except Smith, J., who concurs in the judgment only.
1

If Strickland also files an appeal from the judgment in the second trial, this Court will be faced with multiple appeals: first the notice of appeal from the denial of the former jeopardy plea, then the merits. This Court could decide both appeals together if the legislature would amend OCGA § 5-6-35 (a) so that a defendant would have to file an application for appeal when the trial court denies the defendant’s plea of former jeopardy as frivolous and dilatory.