In the Supreme Court of Georgia



                                                     Decided: October 6, 2014


                       S14A0890. THE STATE v. JACKSON.

       BENHAM, Justice.

       This is the second appearance of this case before this Court. A jury

convicted Marcus Jackson on murder and related charges, after which the trial

court granted defendant’s motion for new trial. This Court reversed, noting that

the order granting new trial was entered solely on the ground of the legal

insufficiency of the evidence, and not pursuant to OCGA § 5-5-21 with the trial

court acting as the “thirteenth juror.”1 State v. Jackson, 294 Ga. 9 (748 SE2d

902) (2013). Jackson filed a motion for reconsideration in which he raised, as

one of three grounds for reconsideration, the argument that the trial court’s order

should be vacated (not reversed) and the case remanded to allow the trial court

to review the case under the thirteenth juror standard. This Court denied the

motion for reconsideration and the remittitur was filed in the trial court

       1
          Pursuant to OCGA § 5-5-21: “The presiding judge may exercise a sound discretion in
granting or refusing new trials in cases where the verdict may be decidedly and strongly against the
weight of the evidence even though there may appear to be some slight evidence in favor of the
finding.”
November 12, 2013. Two days later, Jackson filed a “Motion for Ruling

Pursuant to OCGA Sections 5-5-20 and 5-5-21,” which was submitted to the

predecessor trial judge, Fulton County Superior Court Judge Wendy L. Shoob.

Apparently Judge Shoob was no longer the assigned judge in the case.2 Judge

Gail S. Tusan, to whom the case appears to have been assigned at least by the

time this Court’s earlier judgment was remitted to the trial court, entered an

order that the judgment of this Court be made the judgment of the trial court,

and that order was filed on November 20, 2013. Nevertheless, Judge Shoob

entered an order dated December 6, 2013, purporting to grant Jackson a new

trial pursuant to OCGA §§ 5-5-203 and 5-5-21. The State filed this appeal. We

reverse, finding that jurisdiction was lacking for the entry of the post-remittitur

order purporting to grant a new trial.

       The record reflects that Jackson’s initial motion for new trial was amended


       2
          Although the record does not contain an order reassigning the case, an order executed by
the Fulton County Superior Court Magistrate dated October 14, 2013, setting a hearing date for
Jackson’s request for a bench warrant first appearance hearing, notes that Judge Tusan is the judge
to whom the case is assigned. Further, it was Judge Tusan who entered the order dated November
18, 2013, making the judgment of the this Court the judgment of the trial court after this Court’s
remittitur order was filed in the trial court.
       3
          Pursuant to OCGA § 5-5-20: “In any case when the verdict of a jury is found contrary to
evidence and the principles of justice and equity, the judge presiding may grant a new trial before
another jury.”

                                                2
to assert five grounds of legal error. On the day of the hearing, however,

Jackson filed a second amended motion asserting as its sole ground the

sufficiency of the evidence to support the verdict. At the hearing, Jackson

confirmed his strategic choice to proceed solely on the claim of legal

insufficiency of the evidence, with Jackson’s trial counsel stating he had

discussed the motion at length with Jackson and that he and his client were in

agreement to go forward “only on [the] sufficiency argument raised in the

second amended motion.” Later in the hearing, counsel reiterated the express

waiver and abandonment of all other grounds for rehearing. Upon reversing the

order granting Jackson’s motion for new trial, this Court entered an order

remitting the case to the trial court and directing that the trial court judgment

granting the motion for new trial be reversed.

      Upon remittitur of an appellate court decision to the trial court, “[t]he

decision and direction shall be respected and carried into full effect in good faith

by the court below.” OCGA § 5-6-10. That statutory requirement was honored

by the trial court’s November 20, 2013, order making the judgment of this Court

the judgment of the trial court. By reversing the trial court’s order granting new

trial on the sole ground ultimately pursued by Jackson, this Court’s previous

                                         3
opinion effectively held that the trial court should have denied the motion for

new trial. All pending issues were thereby resolved and no further disposition

of the case by the trial court was authorized.4 Upon remittitur, the disposition

of Jackson’s motion for new trial was final and this Court’s order became the

law of the case. See Shepherd v. Shepherd, 243 Ga. 253 (253 SE2d 696) (1979)

(reversing the trial court’s order that effectively reinstated its previous order

which had been reversed by this Court in a previous appeal of the case; when

the trial court’s decision is reversed without direction, the judgment of the

appellate court is final and the trial court has no authority to allow a party to

amend a motion, the grant of which was reversed by the appellate court’s

previous ruling). Afterwards, the lower court had no jurisdiction to entertain a

newly filed motion for new trial seeking to assert grounds that Jackson had

affirmatively waived and abandoned.5 “The only action which that court had


        4
              Because Jackson expressly waived and abandoned all other grounds for new trial that
were initially raised in his motion, this is not a case in which the trial court ruled on only one, but
not all, of the grounds asserted in the defendant’s motion for new trial so that additional issues raised
in the motion remained to be addressed upon reversal and remand of the case. Compare, e.g., State
v. James, 292 Ga. 440, 442 (738 SE2d 601) (2013); State v. Kelly, 290 Ga. 29, 34-35 (3) (718 SE2d
232) (2011)
        5
          Further, assuming this case was officially reassigned to Judge Tusan, Judge Shoob lacked
authority to rule on this motion. See Uniform Superior Court Rule 3.3; Horn v. Shepherd, 294 Ga.
468 (2) (b) (2014).

                                                   4
authority or power to take was to make the judgment of this [C]ourt the

judgment of the trial court and to enter an order [denying the motion for new

trial.]” Id. at 254. This is because the judgment of this Court in the earlier

appeal “is conclusive of all matters in issue or that might legally have been put

in issue.” (Citation and punctuation omitted.) Akins v. State, 237 Ga. 826, 827

(229 SE2d 645) (1976).

      It was too late, post-remittitur, for Jackson to secure a new trial on

grounds that were not preserved in the motion that was the subject of the earlier

appeal. Just as a criminal defendant may not attack his conviction piecemeal by

filing successive appeals from the conviction (see Grant v. State, 159 Ga. App.

2, 3 (282 SE2d 668) (1981)), likewise, a defendant may not file successive

motions for new trial on grounds not previously raised where, as here, the trial

court’s grant of his motion for new trial was reversed, thus making the

conviction a final judgment. Jackson’s “thirteenth juror” theory of relief was

initially advanced in his motion for new trial, but relief on that claim would only

have gained Jackson a new trial. It is apparent that Jackson made a strategic

choice to waive all other grounds for new trial in favor of advancing only an

assertion of legal sufficiency of the evidence because, if that gamble was

                                        5
ultimately successful, his conviction would be reversed and he would not be

subject to retrial. The trial court erred in granting a successive motion for new

trial in this case.6

        For an appellate court opinion to authorize further action by the trial court

requires a clear direction, whether express or by necessary implication. See

Schley v. Schofield & Son, 61 Ga. 528, 532 (1878). As there was no further


        6
            The trial court, in support of its conclusion that this Court’s reversal of its previous grant
of new trial permitted it to consider Jackson’s post-remittitur motion, quoted and relied upon the
following language from Strickland & Smith, Inc. v. Williamson, 281 Ga. App. 784, 785 (637 SE2d
170) (2006): “When an appellate court reverses a judgment, the effect is to nullify the judgment
below and place the parties in the same position in which they were before judgment.” (Citation and
punctuation omitted.) Strickland & Smith involved a civil case in which the trial court denied the
defendant’s motion for new trial on the issue of damages for lost profits, which ruling was reversed
on appeal and the judgment in favor of the plaintiff was set aside. Id. On remand, the trial court
entered judgment denying plaintiff’s claim, and upon a second appeal of the case, this time by the
plaintiff, the Court of Appeals again reversed and ruled that because the only relief sought by the
defendant was a new trial, upon remand of the case after the first appeal, the posture of the case
required the trial court to conduct a new trial.
          Likewise, the trial court incorrectly relied upon and misapplied the following language from
this Court’s opinion in Wilson v. Wilson, 279 Ga. 302, 303 (612 SE2d 797) (2005): “As a general
rule, where there is a reversal but no express direction of this Court to the lower court, the case
stands as reversed, and a new trial must be had on the issues therein raised.” In Wilson, a divorce
case, this Court ruled that its previous opinion holding that the Superior Court of Spalding County
committed reversible error in refusing to allow wife’s counsel to make a closing argument required,
by necessity, a retrial on all issues in the case. Therefore, in an action to modify custody filed in
Fulton County Superior Court while the initial appeal was still pending, we reversed that trial court’s
refusal to dismiss the modification petition even after this Court reversed the final judgment of the
Spalding County Superior Court. We held that, even in the absence of specific direction by this
Court, the reversal of the Spalding County judgment required retrial on all issues, including the
award of child custody. Moreover, we note that the original opinion reversing the Spalding County
court’s judgment in the divorce case flagged several issues that would need to be addressed on
retrial, thus effectively directing retrial of the case. Wilson v. Wilson, 277 Ga. 801 (2), (3), and (4)
(596 SE2d 392) (2004).

                                                    6
language in this Court’s previous opinion directing the trial court to take further

action in this case, it was authorized only to reverse its grant of Jackson’s

motion for new trial, thus leaving the conviction intact.

      Judgment reversed. All the Justices concur.




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