DeSouza v. State, 645 S.E.2d 684 (Ga. Ct. App. 2007). · Go Syfert
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DeSouza v. State, 645 S.E.2d 684 (Ga. Ct. App. 2007). Cases Citing This Book View Copy Cite
31 citation events (31 in the last 25 years) across 2 distinct courts.
Strongest positive: King v. State (ga, 2016-11-21)
Treatment trajectory · 2007 → 2026 · click a year to view as-of
2007 2016 2026
Top citers, strongest first. 10 distinct citers.
cited Cited as authority (rule) King v. State
Ga. · 2016 · confidence medium
The 2015 accusation also charged King with violation of another code section, but this second count of the accusation was nolle prossed. 285 Ga. App. 201, 202-203 ( 645 SE2d 684 ) (2007).
discussed Cited as authority (rule) Harvey v. State (2×) also: Cited "see"
Ga. · 2015 · confidence medium
See also Prather v. State, 303 Ga. App. 374, 376 ( 693 SE2d 546 ) (2010) (noting, in the defendant’s appeal from the denial of his plea in bar, that the Court of Appeals granted his emergency motion to stay his retrial pending the outcome of the appeal); DeSouza, 285 Ga. App. at 202 (noting, in the defendant’s appeal from his convictions after retrial following a mistrial, that the Court of Appeals considered and denied his emergency motion to stay his retrial pending the outcome of his plea in bar appeal).
discussed Cited as authority (rule) Kevin Russell Kenerly v. State
Ga. Ct. App. · 2013 · confidence medium
Rather the trial court cannot execute a sentence or entertain proceedings which either require a ruling on the matters on appeal or which directly or indirectly affect such matters.[7] The loss of jurisdiction is limited only to those proceedings which either require a ruling on the matters on appeal or directly or indirectly affect such matter.[8] The trial court found that the cases Kenerly cited in support of his motion involved post-judgment trial court actions that were “within the bounds of the issues being appealed.” The court found that that was not the case here, “as the appeal …
discussed Cited as authority (rule) Kenerly v. State
Ga. Ct. App. · 2013 · confidence medium
State v. Bachan, 321 Ga. App. 712 ( 742 SE2d 526 ) (2013) (citations and punctuation omitted). 308 Ga. App. 121 ( 706 SE2d 620 ) (2011) (pendency of appeal in the Supreme Court of Georgia did not deprive trial court of jurisdiction to issue order granting an out-of-time appeal). 279 Ga. App. 434 ( 631 SE2d 480 ) (2006), overruled on other grounds, DeSouza v. State, 285 Ga. App. 201, 202, n. 2 ( 645 SE2d 684 ) (2007).
discussed Cited as authority (rule) Moon v. State (2×)
Ga. · 2010 · confidence medium
Roberts v. State, 279 Ga. App. 434, 437 (1) ( 631 SE2d 480 ) (2006), overruled on other grounds, DeSouza v. State, 285 Ga. App. 201, 202, fn. 2 ( 645 SE2d 684 ) (2007).
discussed Cited as authority (rule) Kramer v. State
Ga. Ct. App. · 2007 · confidence medium
Chambers v. State, 262 Ga. 200, 201-202 ( 415 SE2d 643 ) (1992); Roberts v. State, 279 Ga. App. 434, 437 ( 631 SE2d 480 ) (2006), overruled on other grounds, DeSouza v. State, 285 Ga. App. 201, 202, n. 2 ( 645 SE2d 684 ) (2007).
cited Cited "see" Harvey v. State
Ga. · 2015 · signal: see · confidence high
See id. at 202-203 .
discussed Cited "see" State v. Outen (2×)
Ga. · 2014 · signal: see · confidence high
See Roberts v. State, 279 Ga. App. 434, 437-438 ( 631 SE2d 480 ) (2006) (holding that an appeal challenging the legality of an indictment does not deprive the trial court of jurisdiction over a second indictment charging the same crimes but not implicating the order or matter being appealed), overruled on other grounds, DeSouza v. State, 285 Ga. App. 201, 202, n. 2 ( 645 SE2d 684 ) (2007) (whole court).
discussed Cited "see, e.g." Porter v. State (2×)
Ga. Ct. App. · 2011 · signal: compare · confidence medium
Compare Chambers, supra at 202 (3) (trial court lacked jurisdiction to hold defendant’s trial while he appealed the denial of his motion to suppress). 5 (Citation and punctuation omitted.) Roberts v. State, 279 Ga. App. 434, 437 (1) ( 631 SE2d 480 ) (2006), overruled on other grounds, DeSouza v. State, 285 Ga. App. 201, 202, n. 2 ( 645 SE2d 684 ) (2007). 6 See Hasty v. State, 213 Ga. App. 731 -732 ( 445 SE2d 836 ) (1994). 7 OCGA § 16-8-2. 8 OCGA § 16-8-12 (a) (1). 9 Perdue v. State, 300 Ga. App. 588 ( 685 SE2d 489 ) (2009). 10 (Citation and punctuation omitted.) Campbell v. State, 275 Ga. …
discussed Cited "see, e.g." Lawrence v. State (2×)
Ga. Ct. App. · 2008 · signal: see also · confidence medium
See also Wiliams v. State, 260 Ga. App. 290 ( 581 SE2d 326 ) (2003) (26-month delay in cocaine trafficking case not a denial of constitutional right to speedy trial). 9 266 Ga. 115 ( 464 SE2d 371 ) (1995), disapproved in part on other grounds, Washington v. State, 276 Ga. 655, 658 (2) ( 581 SE2d 518 ) (2003). 10 (Citations omitted.) Id. at 115 (1). 11 Id. at 116. 12 See Roberts v. State, 279 Ga. App. 434, 438 (1) ( 631 SE2d 480 ) (2006) (Griffin distinguishable and not controlling when no indictment pending at time indictment at issue was filed), overruled in part on other grounds, DeSouza v. …
DeSOUZA
v.
THE STATE
A07A0256.
Court of Appeals of Georgia.
Apr 30, 2007.
645 S.E.2d 684
Head, Thomas, Webb & Willis, Jackie G. Patterson, for appellant., Patrick H. Head, District Attorney, Amelia G. Pray, Assistant District Attorney, for appellee.
Adams, Barnes, Andrews, Johnson, Blackburn, Smith, Ruffin, Miller, Ellington, Phipps, Mikell, Bernes.
Cited by 14 opinions  |  Published
Adams, Judge.

Liston Ken DeSouza contends the trial court erred by conducting a retrial of his case while a denial of his earlier plea of double jeopardy was on appeal in this Court.

In November 2003, DeSouza was tried for trafficking cocaine and possession of marijuana with intent to distribute, but the trial ended[*202] in a mistrial. Desouza v. State, 270 Ga. App. 849, 850 (608 SE2d 313) (2004). [1] “De[S]ouza later filed a double jeopardy plea, arguing that he could not be retried because the court had placed undue pressure on the jury with its Allen charges and had improperly declared a mistrial.” Id. The trial court found the plea in bar to be frivolous and denied the motion, and on March 17, 2004, DeSouza filed a notice of appeal. Two days later, the trial court set DeSouza’s trial to begin on April 19,2004. In response, DeSouza filed in this Court an emergency motion to stay the trial pending the outcome of the appeal.

In an order issued on March 19, 2004, this Court ruled that the trial court was not divested of jurisdiction, but it granted a brief stay — through March 25 — to allow DeSouza to petition the Supreme Court of Georgia. But this Court continued, “On such date, absent some ruling from our Supreme Court to the contrary, Defendant’s criminal trial may proceed____” DeSouza filed a petition for certiorari and a supplemental petition on March 30, 2004. But no decision had been rendered as of April 20, 2004. The trial judge decided to proceed, and the trial took place on April 20-22, 2004, with the jury returning a verdict of guilty of trafficking cocaine and not guilty of possession.

On December 10,2004, this Court resolved the earlier appeal and held that “the trial court did not abuse its discretion in declaring a mistrial, and De[S]ouza’s plea in bar for double jeopardy was accordingly without merit.” Desouza, 270 Ga. App. at 851. The remittitur was issued on December 30, 2004 and filed in the trial court on January 10, 2005. On that day, the trial court sentenced DeSouza to 25 years confinement.

DeSouza now contends that, in accordance with Chambers v. State, 262 Ga. 200 (415 SE2d 643) (1992), the trial court did not have jurisdiction to take any action, including trying the case, until the remittitur was received from the appellate court and filed in the trial court. But this case is controlled adversely to DeSouza by Strickland v. State, 258 Ga. 764 (373 SE2d 736) (1988), [2] and Rielli v. Oliver, 170 Ga. App. 699 (318 SE2d 173) (1984).

Those two cases firmly establish that “if the plea of double jeopardy is found to be frivolous, the filing of a notice of appeal by the[*203] defendant shall not divest the trial court of jurisdiction over the case.” (Citations and punctuation omitted.) Rielli, 170 Ga. App. at 699. In this case the trial court made such a finding. “Accordingly, the jurisdiction of [the trial] judge over appellant’s case was not divested by the filing of the notice of appeal from the denial of the plea of double jeopardy.” Id. Under these circumstances, “the filing of a notice of appeal merely deprives the trial court of its ‘power to execute the sentence.’ ” (Citation omitted.) Strickland, 258 Ga. at 765. Here, sentence was not imposed until after the remittitur was filed below. We find no error.

Decided April 30, 2007 Head, Thomas, Webb & Willis, Jackie G. Patterson, for appellant. Patrick H. Head, District Attorney, Amelia G. Pray, Assistant District Attorney, for appellee.

Chambers, 262 Ga. 200, is distinguishable because it does not address the situation where a plea of double jeopardy is found to be frivolous.

Judgment affirmed.

Barnes, C. J., Andrews, R J., Johnson, P. J., Blackburn, P. J., Smith, P. J., Ruffin, Miller, Ellington, Phipps, Mikell and Bernes, JJ., concur.
1

DeSouza’s name was not properly capitalized in his earlier appeal.

2

In Roberts v. State, 279 Ga. App. 434 (631 SE2d 480) (2006), it is stated that Strickland was “overruled in part on other grounds” by Washington v. State, 276 Ga. 655 (581 SE2d 518) (2003). But Washington never mentions Strickland, and it overrules two other cases - not Strickland-on a point of law that is unrelated to any points of law in Strickland. We note that Roberts also cites one of those other two cases and states that it has been “overruled in part on other grounds” by Washington. The only possible conclusion is that a clerical error occurred in Roberts resulting in the misplaced suggestion that Washington has had some effect on Strickland. We find none. Accordingly, we overrule Roberts to the extent it holds that Strickland has been overruled, in whole or part by Washington.