Hipp v. State

A trial court retains the authority to revisit its pretrial ruling denying immunity from prosecution after trial and prior to entry of the final judgment, as long as it is during the same term of court.

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Following Mark A. Hipp’s indictment for aggravated assault and simple battery, he filed a pretrial motion to dismiss based on immunity from prosecution under OCGA § 16-3-24.2, which the trial court denied. At trial, the jury rejected Hipp’s self-defense claim and convicted him on both counts. On motion for new trial, the trial court granted Hipp a new trial on the grounds that the evidence presented at the pretrial hearing established that he was entitled to immunity. The State appealed, and the Court of Appeals reversed, holding that the trial court could not make a post-conviction determination that Hipp was immune from prosecution. State v. Hipp, 314 Ga. App. 520 724 SE2d 825 2012. We granted the petition for writ of certiorari to consider whether a trial court is permitted to revisit a pretrial denial of immunity from prosecution under OCGA § 16-3-24.2 after a jury has rejected a claim of justification at trial. Because a trial court has the authority during the same term of court to revise its pretrial ruling denying immunity from prosecution after a trial and prior to entry of the final judgment, we reverse.

Hipp was arrested after he pulled a knife during a fight in a bar. Prior to trial, he filed a motion to dismiss under OCGA § 16-3-24.2, which provides immunity from criminal prosecution for persons who use threats or force in self-defense. At the pretrial hearing in October 2009, Hipp and his son testified in support of Hipp’s self-defense claim; because the State presented no evidence, their evidence was uncontroverted. Nevertheless, the trial court denied the motion, finding that the words and actions of Hipp suggested mutual combat rather than self-defense. Following a trial at which Hipp presented a justification defense under OCGA § 16-3-21, the jury found him guilty. Hipp file a motion for new trial in January 2010 contending that the trial court had erred in its interlocutory order denying him immunity. Both the motion for new trial and pretrial order denying immunity were filed during the same term of court.

Hipp v. State

A trial court retains the authority to revisit its pretrial ruling denying immunity from prosecution after trial and prior to entry of the final judgment, as long as it is during the same term of court.

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