321 Ga. App. 679
Ga. Ct. App.2013Background
- State appeals after trial court granted Hill’s general demurrer and dismissed five counts of a 37-count indictment.
- Two enumerations: (1) whether Hill’s ownership in his campaign account defeats theft by taking as to his own property; (2) whether RICO prosecution is pre-empted due to mischarged predicate offenses under OCGA § 16-14-3 (9) (A) and (B).
- Issue is whether the trial court’s partial dismissal and related rulings permit direct appellate review without a certificate of immediate review.
- Amendment to OCGA § 5-7-2 (b)(2) in 2012 allegedly Allows direct appeal of orders setting aside or dismissing indictments or counts; question whether retroactive to offenses before July 1, 2012.
- Court concluded it lacked jurisdiction to hear the direct appeal and dismissed the appeal.
- Hill sought interlocutory relief, but appellate review was not activated due to lack of jurisdiction under prior law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appellate jurisdiction to review partial indictment dismissal | Hill: no direct appeal without certificate for partial dismissal | State: amendment permits such appeals without certificates | Appeal dismissed for lack of jurisdiction |
| Retroactivity of OCGA 5-7-2 amendment to pre-July 1, 2012 offenses | State: amendment applies retroactively to allow review | Hill: amendment not retroactive for pre-2012 offenses | Amendment applies to offenses after July 1, 2012; pre-2012 offenses governed by prior statute; appeal remains nugatory |
| Whether the amendment’s retroactivity determines reach of direct appeal (procedural vs substantive) | Statutory retroactivity favors appellate review | Statute’s effective date governs retroactivity for procedural rules | Procedural rule treated as retroactive only as to offenses after July 1, 2012; jurisdiction not activated |
| RICO predicate offenses viability (preemption issue) | State contends indictment pled proper predicate offenses | Hill argues improper predicate charges pre-empt prosecution | Not reaching merits due to lack of jurisdiction |
| Scope of review after partial dismissal | State seeks review of broader indictment action | Hill restricted by jurisdictional rules | Jurisdiction lacking; appeal is nugatory |
Key Cases Cited
- State v. Ware, 282 Ga. 676 (2007) (nugatory appeal if no certificate under prior statute)
- Williams v. State, 297 Ga. App. 626 (2009) (retroactivity of procedural statutes analyzed with legislative intent)
- Fulton County v. Colon, 316 Ga. App. 883 (2012) (operative retroactivity of procedural statute; look to legislative history)
- State v. Outen, 289 Ga. 579 (2011) (finality requirement for appeals of indictments; certificate of immediate review)
- Daugherty v. Norville Indus., Inc., 174 Ga. App. 89 (1985) (cardinal rule to discern legislative intent when statute is unclear)