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State v. Cash

The Court did not have jurisdiction to review the trial court's order denying the State's motion to recuse the trial judge who presided over the hearing on the defendants' new trial motions, because the State did not file its motion to recuse until after the defendants' convictions, jeopardy had therefore attached and the State had no right to appeal.

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The State appeals the trial court’s grant of new trials to appellees, Elgerie Cash and her daughter, Jennifer Weathington, who were tried together in Paulding County Superior Court and found guilty of malice murder, felony murder, two counts of aggravated assault, and possession of a firearm during the commission of a felony in connection with the shooting death of Lennis Jones.1 Appellees, who claimed the victim accidentally shot himself, each filed a motion for new trial. Four days prior to the scheduled hearing on the new trial motions, the State filed a motion to recuse the trial judge. The trial judge dismissed the State’s recusal motion as legally insufficient without referring it to another judge and orally denied the State’s request for a certificate of immediate review. The State immediately filed a notice of direct appeal, which the trial court dismissed as frivolous and dilatory. After denying the State’s request for a continuance, the trial court proceeded with the motion for new trial hearing as scheduled.

Following a two-day hearing, the trial court granted both appellees’ motions for new trial, finding they received ineffective assistance of counsel at trial and that the verdicts were contrary to the principles of justice and equity and decidedly and strongly against the weight of the evidence. Thereafter, the State filed a notice of appeal, appealing the trial court’s orders granting appellees’ motions for new trial, as well as its order denying the State’s motion to recuse. For the reasons which follow, we dismiss the State’s appeal of the denial of its motion to recuse and affirm the trial court’s grant of new trials to appellees.2

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