O.C.G.A.

O.C.G.A. § 17-10-35.1 (2019)

Review of pretrial proceedings when death penalty is sought; reports investigating reversible error; transmittal of reports to Supreme Court; orders regarding review; Attorney General assistance; res judicata; applicability; waiver of rights

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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(a) In cases in which the death penalty is sought, there may be a review of all pretrial proceedings by the Supreme Court upon a determination by the trial judge under Code Section 17-10-35.2 that such review is appropriate. The review shall be initiated by the trial judge’s filing in the office of the clerk of superior court and delivering to the parties a report certifying that all pretrial proceedings in the case have been completed and that the case stands ready for trial. Within ten days after the filing of the report or the receipt of transcripts of the proceedings, whichever is later, the prosecutor and the defendant may each file with the clerk of superior court and serve upon the opposing party a report identifying all areas of the pretrial proceedings with respect to which reversible error may arguably have occurred. Either party may consolidate with such report an application for appeal with respect to any order, decision, or judgment entered in the case. Any such

application for appeal shall be in the form otherwise appropriate under subsection (b) of Code Section 5-6-34, but: (1) Any such application for appeal shall be filed with the clerk of superior court rather than the clerk of the Supreme Court; (2) The opposing party shall not be required or permitted to respond to such an application for appeal; and (3) No certificate of immediate review shall be required for the filing of such application for appeal. (b) The reports of the trial judge, prosecutor, and defendant under subsection (a) of this Code section shall be in the form of standard questionnaires prepared and supplied by the Supreme Court. Such questionnaires shall be designed to determine whether there is arguably any existence of reversible error with respect to any of the following matters: (1) Any proceedings with respect to change of venue; (2) Any proceedings with respect to recusal of the trial judge; (3) Any challenge to the jury array; (4) Any motion to suppress evidence; (5) Any motion for psychiatric or other medical evaluation; and (6) Any other matter deemed appropriate by the Supreme Court. (c) Upon the filing of the reports of the parties, the clerk of superior court shall transmit to the Supreme Court the report of the trial judge, the transcripts of proceedings, and the reports of the parties together with any application for appeal consolidated therewith. A copy of all of the foregoing shall also be delivered by the clerk of superior court to the Attorney General. (d) The Supreme Court shall issue an order granting review of the pretrial proceedings, or portions thereof, or denying review within 45 days of the date on which the case was received. The order of the Supreme Court shall identify the matters which shall be subject to review, and such matters may include, but need not be limited to, any matters called to the court’s attention in any of the reports or in any application for appeal. No notice of appeal shall be required to be filed if review of the pretrial proceedings is granted. An order granting review of pretrial proceedings shall specify the period of time within which each party shall file briefs and reply briefs with respect to the matters identified in the Supreme Court’s order granting review. The Supreme Court may order oral argument or may render a decision on the record and the briefs.

(e) If requested by the district attorney, the Attorney General shall assist in the review and appeal provided for in this Code section. (f ) Review of any matter under this Code section shall, as to any question passed on in such review, be res judicata as to such question and shall be deemed to be the law of the case. (g) The procedure under this Code section shall not apply to any ruling or order made, invoked, or sought subsequent to the filing of the report of the trial judge. (h) The failure of either party to assert the rights given in this Code section, or the failure of the Supreme Court to grant review, shall not waive the right to posttrial review of any question review of which could be sought under this Code section and shall not constitute an adjudication as to such question.

History

Code 1981, § 17-10-35.1, enacted by Ga. L. 1988, p. 1437, § 4; Ga. L. 2010, p. 420, § 1/HB 323.

Annotations

Cross references. - Issues for review, Ga. Sup. Ct. R. 37. Editor’s notes. - Ga. L. 2010, p. 420, § 3/HB 323, not codified by the General Assembly, provides, in part, that the amendment of this Code section shall ap-

ply to any case docketed on or after July 1, 2010. Law reviews. - For article, ‘‘A Study of the Unified Appeal Procedure in Georgia,’’ see 23 Ga. L. Rev. 185 (1988). For annual survey of appellate practice and procedure, see 40 Mercer L. Rev. 51 (1988). For annual survey on the death penalty, see 64 Mercer L. Rev. 109 (2012).

JUDICIAL DECISIONS Victim-impact evidence warranted death sentence reversal. - Prosecutor’s use of victim-impact evidence concerning the personal characteristics of the victim and the psychological, emotional, and physical impact of the crime on the victim’s family attempted to introduce evidence of a kind never before approved by the court without pretrial, interim appellate review warranting reversal of the death sentence in accordance with Sermons v. State, 262 Ga. 286 (1992). Moore v. State, 263 Ga. 11, 427 S.E.2d 766 (1993).

Cited in Caldwell v. State, 260 Ga. 278, 393 S.E.2d 436 (1990); Mobley v. State, 262 Ga. 808, 426 S.E.2d 150 (1993); Livingston v. State, 264 Ga. 402, 444 S.E.2d 748 (1994); Southeastern Newspapers Corp. v. State, 265 Ga. 223, 454 S.E.2d 452 (1995); Ramirez v. State, 276 Ga. 158, 575 S.E.2d 462 (2003); Harper v. State, 283 Ga. 102, 657 S.E.2d 213 (2008); Walker v. State, 290 Ga. 696, 723 S.E.2d 894 (2012); Ellington v. State, 292 Ga. 109, 735 S.E.2d 736 (2012); State v. Cash, 302 Ga. 587, 807 S.E.2d 405 (2017).

Notes of Decisions

Cited in 39 cases, 1990–2017 · leading case: Humphreys v. State, 694 S.E.2d 316 (Ga. 2010).

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Humphreys v. State, 694 S.E.2d 316 (Ga. 2010). · cites it 8× “[2] In its order denying Humphreys's motion for new trial, the trial court cited this Court's denial of the petition for interim review in this case, see OCGA § 17-10-35.1; U.A.P. II(F)-(H), as the basis for denying this claim, as well as some of Humphreys's other claims.”

State v. Martin, 603 S.E.2d 249 (Ga. 2004). · cites it 8× “OCGA §§ 17-10-35.1 to 17-10-35.2; OCGA § 5-6-34(c); U.”

Fair v. State, 664 S.E.2d 227 (Ga. 2008). · cites it 4× “Pursuant to OCGA § 17-10-35.1, we granted their applications for interim review to consider the following issues: (1) whether the trial court erred in denying the defendants' motions for a pre-trial determination of whether they are entitled to immunity from prosecution under…”

Ellington v. State, 735 S.E.2d 736 (Ga. 2012). · cites it 4× “After Sergeant Germano and Detective Bryant concluded their interview at about 2:12 p.m., Ellington was allowed to see his mother and was then taken to the jail.”

Ricks v. State, 800 S.E.2d 307 (Ga. 2017). · cites it 4× “See OCGA §§ 17-10-35.1, 17-10-35.2; UAP II (F), (H).”

Griffin v. State, 464 S.E.2d 371 (Ga. 1995). · cites it 8× “We granted Griffin's application for interim appeal pursuant to OCGA § 17-10-35.1. We hold that the murder count of the Thomas County indictment must be quashed because at the time of his indictment in Thomas County, that county *373 lacked the right to exercise jurisdiction.”

Fair v. State, 702 S.E.2d 420 (Ga. 2010). · cites it 4× “Pursuant to OCGA § 17-10-35.1, we granted their second applications for interim review to consider whether the trial court erred in denying their motions to declare unconstitutional the statutory aggravating circumstance described in OCGA § 17-10-30(b)(8) and in ruling that the…”

Livingston v. State, 444 S.E.2d 748 (Ga. 1994). · cites it 4× “OCGA § 17-10-35.1. S94A0277. Howard Kelly Livingston 1.”

Hulett v. State, 766 S.E.2d 1 (Ga. 2014). · cites it 2× “See OCGA § 17-10-35.1. 7 The testimony also showed that, after Hulett’s mother and father divorced, Hulett’s mother gave birth to another child, who also did not live with her, further demonstrating her detachment from and lack of involvement with her children.”

Green v. State, 614 S.E.2d 751 (Ga. 2005). · cites it 4× “2 The trial court ruled appellant’s contentions about pre-trial identification were without merit because this Court had conducted a pre-trial interim review of the case pursuant to OCGA § 17-10-35.1 of the Unified Appeal Procedure and had not modified the trial court’s rulings…”

Harper v. State, 657 S.E.2d 213 (Ga. 2008). · cites it 4× “See OCGA § 17-10-35.1 (h) (“[T]he failure of the Supreme Court to grant review-.”

Pickren v. State, 500 S.E.2d 566 (Ga. 1998). · cites it 4× “We granted Pickren's application for interim appeal pursuant to OCGA § 17-10-35.1, in order to address the trial court's approval of the admission of victim impact *568 statements and the State's use of a videotaped reenactment of the crime.”

Show all 39 citing cases →

— 17-10-35.1(a) — 2 cases

State v. Martin, 603 S.E.2d 249 (Ga. 2004). “OCGA §§ 17-10-35.1 to 17-10-35.2; OCGA § 5-6-34(c); U.”

Griffin v. State, 464 S.E.2d 371 (Ga. 1995). “We granted Griffin's application for interim appeal pursuant to OCGA § 17-10-35.1. We hold that the murder count of the Thomas County indictment must be quashed because at the time of his indictment in Thomas County, that county *373 lacked the right to exercise jurisdiction.”

— 17-10-35.1(h) — 4 cases

Humphreys v. State, 694 S.E.2d 316 (Ga. 2010). “[2] In its order denying Humphreys's motion for new trial, the trial court cited this Court's denial of the petition for interim review in this case, see OCGA § 17-10-35.1; U.A.P. II(F)-(H), as the basis for denying this claim, as well as some of Humphreys's other claims.”

Harper v. State, 657 S.E.2d 213 (Ga. 2008). “See OCGA § 17-10-35.1 (h) (“[T]he failure of the Supreme Court to grant review-.”

Stripling v. State, 711 S.E.2d 665 (Ga. 2011).

Reaves v. State, 664 S.E.2d 207 (Ga. 2008).

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