James Lively, Jr. v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 18, 2022

The Court of Appeals hereby passes the following order: A22A1360. JAMES LIVELY, JR. v. THE STATE.

James Lively, Jr., was sentenced to death following his conviction for two counts of murder and one count of aggravated assault, but the Supreme Court reversed and held that the case could be retried. Lively v. State, 262 Ga. 510 (421 SE2d 528) (1992). Lively subsequently pled guilty to the charged offenses and was sentenced to life imprisonment in 1994. Recently, Lively filed a motion in arrest of void judgment. The trial court dismissed the motion, and Lively filed a notice of appeal to this Court. Under our Constitution, however, the Supreme Court has appellate jurisdiction over “[a]ll cases in which a sentence of death was imposed or could be imposed.” See Ga. Const. of 1983, Art. VI, Sec. VI, Par. III (8). Because a penalty of death can be imposed for the crime of murder, jurisdiction is proper in the Supreme Court. See OCGA § 16-5-1 (e) (1); Neal v. State, 290 Ga. 563, 572 (722 SE2d 765) (2012) (Hunstein, C. J., concurring); see also State v. Thornton, 253 Ga. 524, 524 (1) (322 SE2d 711) (1984) (directing this Court to transfer “all cases in which either a sentence of death or of life imprisonment has been imposed upon conviction of murder”), overruled in part on other grounds as recognized in Elliott v. State, 305 Ga. 179, 205 (III) (C) (i) (824 SE2d 265) (2019). The Supreme Court’s jurisdiction over murder cases includes appeals from orders resolving post-judgment motions in such cases. See Simpson v. State, 292 Ga. 764 (740 SE2d 124) (2013) (appeal from denial of a motion in arrest of judgment attacking murder convictions as void).

Accordingly, this appeal is hereby TRANSFERRED to the Supreme Court for disposition.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 05/18/2022 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.