2004, we affirmed Stanley Hollmon's malice murder
conviction and held that his convictions for criminal attempt
to commit armed robbery and felony murder had been vacated.
See Hollomon (sic) v. State, 278 Ga. 143 (598 S.E.2d
498) (2004) ("Hollmon I"). More than a
decade later, the trial court entered a sentence on the
vacated criminal attempt count. Following that resentencing,
in March 2018, Hollmon filed a motion for new trial seeking
to raise claims that the indictment was defective and that
trial counsel was ineffective for failing to raise the issue.
Without specifying whether it was denying or dismissing that
motion, the trial court applied our holding in
Walker-Madden v. State, 301 Ga. 744, 745 (804 S.E.2d
8) (2017), and ruled that Hollmon could not assert the claims
because he should have raised them in his first appeal.
Hollmon now challenges that ruling. But because the trial
court's resentencing was a nullity, Hollmon was not
permitted a motion for new trial from the resentencing. We
construe the trial court's ruling as a dismissal of
Hollmon's motion and affirm, and vacate the trial
court's sentencing order.
The trial court lacked authority to
affirming Hollmon's murder conviction in Hollmon
I, we observed that his convictions for felony murder
and criminal attempt were vacated as a matter of law. See
Hollmon I, 278 Ga. at 143 n.1 (citing Malcolm v.
State, 263 Ga. 369 (434 S.E.2d 479) (1993)). According
to our holding, Hollmon was not convicted of felony murder or
criminal attempt, and the trial court lacked authority to
change that result under the law of the case doctrine.
doctrine provides that holdings of the Supreme Court or the
Court of Appeals in a case shall be binding in all subsequent
proceedings in that case in the lower court and in the
Supreme Court or the Court of Appeals. OCGA § 9-11-60
(h). It is well-established that the law of the case doctrine
applies to holdings by appellate courts in criminal cases.
See, e.g., McDonald v. State, Ga. ___, (1) (___
S.E.2d ___) (2019 WL 272692) (Case No. S18A1357, decided Jan.
22, 2019); Roulain v. Martin, 266 Ga. 353, 354 (1)
(466 S.E.2d 837) (1996). Our holding that Hollmon had not
been convicted of felony murder or criminal attempt was law
of the case, and the trial court was precluded from
revisiting it. See Roulain, 266 Ga. at 354 (1)
(under the law of the case, "[t]he habeas court had no
authority to consider whether this [C]ourt erred in its
disposition of Martin's appeal.").
makes several arguments in an attempt to bypass the
application of the law of the case doctrine. First, he argues
that we were mistaken to vacate his criminal attempt
conviction in Hollmon I. Second, he argues that we
ought to declare our opinion in Hollmon I a nullity
because we lacked jurisdiction over the case due to the trial
court's purported failure to enter discrete sentences on
each count, and thus a final judgment was not entered until
the 2018 resentencing. See, e.g., Keller v. State,
275 Ga. 680, 681 (571 S.E.2d 806) (2002) ("[W]hen
multiple counts of an indictment are tried together and the
trial court does not enter a written sentence on one or more
counts, the case is still pending in the trial court and is
not a final judgment under OCGA § 5-6-34 (a)
(1)."). Both of these arguments rest on the premise that
Hollmon's convictions were not vacated prior to our
disposition of Hollmon I. But our opinion made clear
that they were.
had vacated certain convictions - as opposed to the
convictions already being vacated by operation of law - our
judgment line would have reflected such an action, but we
simply affirmed in Hollmon I. Compare Atkinson
v. State, 301 Ga. 518 (801 S.E.2d 833) (2017) (judgment
line vacating in part due to merger error). Even if we were
wrong to conclude that the convictions were vacated by
operation of law, our determination still controlled and
precluded the trial court from sentencing him on the vacated
counts. See Hicks v. McGee, 289 Ga. 573, 578 (2)
(713 S.E.2d 841) (2011) (the law of the case applies
"despite all contentions that prior rulings in the
matter are erroneous" (citation omitted)). Moreover,
Hollmon cites no authority that allows a trial court to enter
a new sentence on a vacated count, and we could find none. As
a result, the trial court was without authority to enter its
February 2018 sentence on the criminal attempt count, and
that sentencing order is hereby vacated.
Hollmon's motion for new trial was a nullity.
the trial court lacked authority to sentence Hollmon on the
vacated criminal attempt count, Hollmon's motion for new
trial was a nullity. A defendant who, like Hollmon, has had a
conviction affirmed on direct appeal may "gain further
appellate review of the judgment of conviction [only] by
filing an extraordinary motion for new trial or a petition
for writ of habeas corpus." Richards v. State,
275 Ga. 190, 191 n.1 (563 S.E.2d 856) (2002). But the errors
Hollmon seeks to raise - that the indictment was defective
and trial counsel was ineffective for failing to raise the
challenge - could have been asserted in his first appeal and
thus cannot form the basis for an extraordinary motion for
new trial. See Goodwin v. State, 240 Ga. 605 (242
S.E.2d 119) (1978) (errors that could have been discovered
through exercise of due diligence cannot form the basis of an
extraordinary motion for new trial); see also State v.
Smith, 276 Ga. 14, 15 (1) (573 S.E.2d 64) (2002)
(ineffectiveness claim that could have been asserted earlier
cannot form the basis of an extraordinary motion for new
trial), disapproved of on other grounds by Wilkes v.
Terry, 290 Ga. 54, 55-56 (717 S.E.2d 644) (2011). And