STATE OF GEORGIA et al. v. SUN STATES INSURANCE GROUP, INC.; and vice versa.
S15G1293, S15G1307
Supreme Court of Georgia
JULY 5, 2016
RECONSIDERATION DENIED JULY 25, 2016.
788 SE2d 346
HINES, Presiding Justice.
accepting it as true. Nevertheless, had Clark testified, the jury could have chosen not to believe what he said about Lewis. But that is exactly the point. Due to the deficient performance of Appellant‘s trial counsel, the jurors who found him guilty did not have the opportunity to hear Clark testify or to consider the evidence they did hear with the instruction that if they found Lewis to be an accomplice to the shooting, they must treat him unlike the other witnesses and decide whether his identification of Appellant was corroborated by other evidence. A jury that heard Clark and was properly instructed might reach the same verdict, but we cannot say that with confidence. See Stanbury, 299 Ga. at 131 (“A trial court‘s failure to give an accomplice corroboration instruction when a defendant is affirmatively identified as the . gunman in a murder based solely on accomplice testimony undermines the fairness of the proceedings, at least when coupled with the express authorization by the court for the jury to establish critical facts based solely on this testimony.”).
Accordingly, we conclude that Appellant has carried his burden to show that his trial counsel‘s deficient performance resulted in prejudice as defined in Strickland. His convictions must therefore be reversed, although the State may choose to retry him. See Cowart, 294 Ga. at 343-344.
Judgment reversed. All the Justices concur.
DECIDED JULY 8, 2016.
Kenneth D. Kondritzer, Steven E. Phillips, for appellant.
Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Sheila E. Gallow, Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Michael A. Oldham, Assistant Attorney General, for appellee.
HINES, Presiding Justice.
This Court granted a writ of certiorari to the Court of Appeals in State of Ga. v. Sun States Ins. Group, 332 Ga. App. 197 (770 SE2d 43) (2015), litigation involving the liquidation of an insurance company, International Indemnity Company (“IIC”), pursuant to the Insurers Rehabilitation and Liquidation Act1 and attempts by IIC‘s sole shareholder, Sun States Insurance Group, Inc. (“Sun States”), to get monetary relief from the State of Georgia as liquidator (“State/liquidator”) and its agents, including Regulatory Technologies, Inc. (“Reg Tech”), which assisted in the liquidation of IIC. Sun States sought, inter alia, monies, it characterized as a “surcharge,” which allegedly were wrongfully taken out of the IIC estate. The State/liquidator unsuccessfully moved to dismiss Sun State‘s claims against it, asserting that they were claims for a money judgment against the State, and thus, barred by the doctrine of sovereign immunity. It then filed a direct appeal of the superior court‘s denial of its motion to dismiss on the basis of sovereign
The Court of Appeals affirmed in part and reversed in part the judgment of the superior court, and remanded the case to it; however, the Court of Appeals was without jurisdiction to entertain the appeal. In Rivera v. Washington, 298 Ga. 770 (784 SE2d 775) (2016), this Court reaffirmed that the collateral order doctrine is extremely limited in its application and that it does not permit a direct appeal from the denial of a motion to dismiss based upon governmental immunity. Id. That was precisely the situation before the Court of Appeals. Consequently, the Court of Appeals should have dismissed the direct appeal before it for failure to follow the interlocutory appeal procedures. Id.
Accordingly, the judgment of the Court of Appeals is a nullity, and we vacate the judgment of the Court of Appeals and remand for proceedings consistent with this opinion. See Kliesrath v. Estate of Davis, 298 Ga. 872 (786 SE2d 238) (2016).
Judgment vacated and case remanded with direction. All the Justices concur.
Samuel S. Olens, Attorney General, Isaac Byrd, Deputy Attorney General, Daniel S. Walsh, Senior Assistant Attorney General, Jeffrey W. Stump, Assistant Attorney General, for State of Georgia.
Barnes & Thornburg, Thomas J. Gallo, Lora R. Lerman, Brian Casey, for Sun States Insurance Group.
Robbins Ross Alloy Belinfante Littlefield, Richard L. Robbins, Alexander F. Denton, Alexa R. Ross, for Regulatory Technologies.