DARLING v. McLAUGHLIN
S16A0071
Supreme Court of Georgia
May 23, 2016
786 SE2d 657
Melton, Justice
S16A0071. DARLING v. McLAUGHLIN.
(786 SE2d 657)
On May 11, 2011, Thomas Darling pled guilty to felony murder for having failed to promptly seek medical treatment for a minor child, and was sentenced to life in prison. In November 2013, Darling filed a pro se petition for habeas corpus relief challenging the voluntariness of his plea. At an evidentiary hearing held on August 27, 2014,1 Darling’s plea counsel, among other witnesses, testified. The
habeas court granted the parties 60 days to file post-hearing briefs, and on October 20, 2014, Terry J. Marlowe entered an appearance as counsel for Darling. On November 3, 2014, Marlowe filed on Darling’s behalf a motion to dismiss Darling’s pro se petition without prejudice, pursuant to
This Court granted Darling’s application for a Certificate of Probable Cause to appeal to determine whether the habeas court abused its discretion by relying on
By its plain terms,
Subject to the provisions of subsection (e) of Code Section 9-11-23 [dismissal of class actions], Code Section 9-11-66 [dismissals in actions where a receiver has been appointed], and any statute, an action may be dismissed by the plaintiff, without order or permission of court: (A) By filing a written notice of dismissal at any time before the first witness is sworn; or (B) By filing a stipulation of dismissal signed by all parties who have appeared in the action.
However, subsection (a) (1) does not provide the only means by which an action may be voluntarily dismissed under
third method is provided in subsection (a) (2) of the statute:
Except as provided in paragraph (1) of this subsection, an action shall not be dismissed upon the plaintiff’s motion except upon order of the court and upon the terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him or her of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court.
Reading these two provisions together, where, as here, the case does not involve a class action, an appointed receiver, another statute that provides otherwise, or a counterclaim pleaded by a defendant prior to that defendant being served with the plaintiff’s motion to dismiss, a plaintiff may voluntarily dismiss his or her case without prejudice (1) by filing a notice of dismissal at any time before the first witness is sworn; (2) by stipulation of the parties; or, when the first two methods are unavailable, (3) “upon order of the court and upon the terms and conditions
In the instant case, because witnesses had already been sworn at the hearing on Darling’s pro se petition for habeas corpus relief, and because the parties had not stipulated to the voluntary dismissal of Darling’s case, the means of voluntary dismissal described in
Judgment vacated and case remanded with direction. All the Justices concur.
GIDDENS v. THE STATE
S16A0256
Supreme Court of Georgia
May 23, 2016
786 SE2d 659
Nahmias, Justice
Terry J. Marlowe, for appellant.
Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.
S16A0256. GIDDENS v. THE STATE.
(786 SE2d 659)
NAHMIAS, Justice.
Appellant Matdrick Giddens was found guilty of five crimes, including two counts of felony murder, in connection with the shooting death of Timothy Murray, Jr. After the trial court granted Appellant’s motion for new trial based on two instructional errors, he filed a plea in bar seeking dismissal of the case based on his constitutional protection against double jeopardy. The trial court denied the plea in bar, and Appellant now appeals that ruling. He argues that the evidence at his trial was insufficient to support the guilty verdicts and that collateral estoppel bars the State from retrying him for the crimes of which he was found guilty, because he was acquitted of the aggravated assault count that is a predicate element of all of those crimes.
We conclude that the evidence was sufficient to support the guilty verdicts. As for the collateral estoppel issue, we note that the United States Supreme Court recently granted certiorari to decide this very question, which has divided the lower courts. See United States v. Bravo-Fernandez, 790 F.3d 41 (1st Cir. 2015), cert. granted, _ U. S. _ (136 S Ct 1491, 194 LE2d 585) (2016). Unfortunately, that decision will come down after our two-term deadline for deciding this case, see Ga. Const. of 1983, Art. VI, Sec. IX, Par. II, so we must work through the constitutional question. After doing so, we join the majority position and reject Appellant’s argument. We therefore affirm the trial court’s judgment.1