CourtListener 10680321

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319 Ga. 123
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S24A0174. THOMAS v. THE STATE.

BETHEL, Justice.

This Court granted the interlocutory application of Tyler Jarel

Thomas, who timely sought review of a trial court order that vacated

its earlier grant of his motion to suppress. Thomas argues that the

end-of-term rule, which we have held imposes a term-based time

restriction on a trial court’s authority over its interlocutory orders

in criminal cases, should have barred the trial court’s

reconsideration, even though a new trial had been granted in his

case. But for the reasons explained below, we conclude that

Thomas’s argument fails, so we affirm.

1. In February 2014, Thomas was indicted for the murder of

Ashley Brown. Before his indictment, law enforcement executed a

court order for Thomas’s phone records, including cell site location

information (“CSLI”). At the time investigators obtained those

records, access to them was governed by federal and state statutes.
In 2014, while some federal courts held differently, “no appellate

precedent binding in Georgia courts held that a request or demand

by a governmental entity to a cell phone service provider that the

provider produce its records related to a customer’s account

constituted a search under the Fourth Amendment” to the United

States Constitution. Lofton v. State, 310 Ga. 770, 776 (2) (854 SE2d

690) (2021). In other words, at that time in Georgia courts, a court

order was legally sufficient to obtain records like the ones at issue

here; a warrant was unnecessary.1

Nonetheless, Thomas moved to suppress the CSLI in June

2014, arguing that it was obtained in violation of the Fourth

Amendment. The trial court agreed with Thomas and granted his

motion, relying in part upon United States v. Davis, 754 F3d 1205

(11th Cir. 2014) (“Davis I”), an Eleventh Circuit decision that held a

1 This changed with the United States Supreme Court’s decision in
Carpenter v. United States, 585 U. S. 296 (138 SCt 2206, 201 LE2d 507) (2018),
which held that compelling a cell phone service provider to turn over a user’s
historical CSLI of seven days or more constitutes a search under the Fourth
Amendment and that, before such a search, “the Government’s obligation is a
familiar one — get a warrant.” Id. at 317 (IV).
2
warrant was necessary to obtain CSLI. But a year after it decided

Davis I, the Eleventh Circuit reconsidered the case, reversing its

position and holding that the Fourth Amendment to the United

States Constitution did not require a warrant to obtain CSLI. See

United States v. Davis, 785 F3d 498 (11th Cir. 2015) (deciding that

a court order was sufficient to obtain CSLI from a service provider)

(“Davis II”).2

In May 2017, the day that voir dire was scheduled to begin, the

State asked the trial court to reconsider its suppression order in

light of the Eleventh Circuit’s reconsideration of Davis I. Thomas

argued that the end-of-term rule prohibited the trial court’s

reconsideration of the suppression order, even though the decisional

law upon which the previous order relied had changed. While

recognizing a change in the law underlying the suppression order,

the trial court opined that the end-of-term rule, as articulated in

Moon v. State, 287 Ga. 304 (696 SE2d 55) (2010), divested it of the

2 Neither Davis I nor Davis II was binding authority on the trial court,

but the court looked to Davis I as “instructive” when granting Thomas’s motion
to suppress.
3
authority to reconsider its own prior interlocutory ruling.

At trial, the jury found Thomas guilty of malice murder and

related crimes. He timely filed a motion for new trial, which was

granted by the trial court. We affirmed the grant of a new trial on

the grounds that the State had committed a Brady violation, see

Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963),

by failing to disclose a deal with a witness. See State v. Thomas, 311

Ga. 407 (858 SE2d 52) (2021) (“Thomas I”). On appeal, the State did

not challenge, and this Court did not address, the trial court’s ruling

suppressing the CSLI evidence.

Upon remand to the trial court, the State again moved for

reconsideration of the CSLI suppression order. Thomas, meanwhile,

reprised his end-of-term rule argument. But this time, the trial court

agreed with the State,3 vacated the earlier suppression order, and

held that the CSLI could be tendered at trial. In so holding, the trial

court expressly rejected Thomas’s argument based on the end-of-

3 By our count, the motion to reconsider was granted by the third judge

overseeing this case; the first judge suppressed the evidence in 2014, and the
second judge declined reconsideration before the 2017 trial.
4
term rule, explaining that reconsideration of the evidentiary ruling

was proper because “[t]here is no final judgment in this case,”

“questions of suppression remain ripe and open for reconsideration,”

“no appellate court has opined on the question of the admissibility

of the CSLI in this case,” and the CSLI issue “has remained within

the breast of the trial court since the inception of this case.” This

appeal followed.

2. On appeal, Thomas argues, as he did below, that the end-of-

term rule should have prohibited the trial court’s reconsideration of

its order on his motion to suppress. Subject to certain exceptions,

which are not applicable here, we have said that the end-of-term

rule limits “a trial court’s inherent power to revoke interlocutory

rulings” in criminal cases to the end of the term in which the ruling

was entered.4 Kelly v. State, 315 Ga. 444, 447 (2) (883 SE2d 363)

4 The parties, the trial court, and some case law occasionally conflate the

end-of-term rule and the law of the case doctrine. The two are often present in
the same case and have related concepts, but they are distinct. The law of the
case doctrine provides that appellate rulings are binding in all subsequent
proceedings. See OCGA § 9-11-60 (h) (“[A]ny ruling by the Supreme Court or
the Court of Appeals in a case shall be binding in all subsequent proceedings

5
(2023) (quoting Moon, 287 Ga. at 304). Because the order on the

motion to suppress in this case was reconsidered several years after

the end of the term in which it was granted, Thomas contends that

the trial court’s reconsideration was improper. For its part, the State

argues that the reconsideration was not improper, because there has

been no final judgment in this case and we have also said that trial

courts “retain[ ] broad discretion over interlocutory evidentiary

rulings which may be modified at any time until entry of final

judgment,” not just until the end of the term in which they were

entered. Ritter v. State, 272 Ga. 551, 553 (2) (532 SE2d 692) (2000)

(holding that a trial court did not err by reconsidering an out-of-term

interlocutory ruling after the declaration of a mistrial) (emphasis

supplied). Thus, the issue before us is whether, after a new trial has

been granted in a criminal case, a trial court is prohibited from

in that case in the lower court and in the Supreme Court or the Court of
Appeals as the case may be.”). While the law of the case doctrine is found in
the Civil Practice Act, we have held that it applies in criminal cases, too. See
Roulain v. Martin, 266 Ga. 353, 354 (1) (466 SE2d 837) (1996). But the law of
the case doctrine does not apply here, because no appellate court has ruled on
the disputed motion to suppress.
6
reconsidering an interlocutory ruling that it entered in an earlier

term.

In civil cases, the end-of-term rule has been explicitly curtailed

by statute. See OCGA § 9-11-6 (c) (“The continued existence or

expiration of a term of court in no way affects the power of a court

to do any act or take any proceeding in any civil action which has

been pending before it, except as otherwise specifically provided by

law.”). Compare OCGA § 15-1-3 (6)-(7) (“Every court has power . . .

[t]o amend and control its processes and orders, so as to make them

conformable to law and justice . . . before final judgment.”).5 But we

5 The State contends that OCGA § 15-1-3 (6)-(7), while not abrogating

the common law end-of-term rule as explicitly as in the Civil Practice Act,
implicitly abolished the rule’s application to interlocutory orders in criminal
cases because it grants courts the authority to “amend and control” their orders
“before final judgment,” as opposed to limiting that authority to the term in
which an order was entered. Id. But see Crowell v. Crowell, 191 Ga. 36 (11
SE2d 190) (1940). Indeed, if that is an accurate reading of the statute, our
persistent application of this common law rule has been in error, because we
are only bound to follow the common law if it has not been superseded by
statute. See OCGA § 1-1-10 (c) (1); Moon, 287 Ga. at 305 (1) (Nahmias, J.,
concurring) (explaining that the end-of-term rule, “which comes from the pre-
Revolution English common law, seems outdated, but this Court probably
lacks the authority to change it,” because our Code requires us to follow the
English common law unless otherwise displaced by law). If the State is correct,
OCGA § 15-1-3 (6)-(7) permits trial courts to revise their own rulings, even
those rendered in an earlier term, as long as that revision occurs before final

7
have continued applying the end-of-term rule in criminal cases, even

to interlocutory orders. See, e.g., Moon, 287 Ga. at 304; Hipp v. State,

293 Ga. 415, 417 (746 SE2d 95) (2013).

We have consistently held, however, that when a new trial has

been granted, trial courts are not prohibited from reconsidering

their previous orders. See, e.g., Smith v. State, 292 Ga. 620, 622 (3)

(740 SE2d 158) (2013) (citing Ritter, 272 Ga. at 553 (2)) (holding

that, upon remand, a trial court is not “required to rehear all pretrial

motions as though they had never before been considered,” but that

it has the authority to do so); Salisbury v. Grimes, 223 Ga. 776, 778

(2) (158 SE2d 412) (1967) (“When appellant [is] granted a new trial,

it wipe[s] the slate clean as if no previous conviction and sentence

had existed.”). Under the reasoning of Ritter and Smith, therefore,

because the final judgment in this case was vacated by the grant of

a new trial, the trial court may reconsider rulings from earlier

terms.

judgment. But because this case may be resolved by reference to existing
precedent, we do not reach this issue.
8
Thomas resists this conclusion, arguing that the end-of-term

rule’s application should not be limited by the grant of a new trial.

Rather, he would have us hold that, upon remand following our

decision in Thomas I, his case reverted to the posture it occupied the

moment before his trial began, with all prior rulings intact and the

trial court lacking authority to reassess them. Under Thomas’s view

of the end-of-term rule, the trial court would be prohibited from

revisiting its earlier suppression ruling because that ruling was

entered years before its reconsideration. In support of this

contention, Thomas asserts that Ritter and Smith are unsound and

should be considered with “caution.” He does not argue that we

should overrule those cases; instead, he asserts that Ritter’s

precedential value should be “limited” because, he says, the cases it

relies upon do not support its ultimate conclusion. Thomas also

argues that Ritter should not be followed because of its apparent

tension with Moon, Ritter permitting reconsideration of

interlocutory rulings before entry of final judgment, see Ritter, 272

Ga. at 553 (2), and Moon broadly holding that “a trial court’s

9
inherent power to revoke interlocutory rulings . . . ceases with the

end of the term,” Moon, 287 Ga. at 304.

Thomas’s criticism of the decisional law upon which Ritter

relied — specifically, Tucker v. State, 231 Ga. App. 210 (498 SE2d

774) (1998), and Bradley v. Tattnall Bank, 170 Ga. App. 821 (318

SE2d 657) (1984) — is unfounded. Tucker principally concerned the

evidentiary-posture exception to the end-of-term rule,6 and Thomas

argues that Tucker’s applicability should be limited to that

exception. But Tucker’s broad language was derived from a Court of

Appeals decision that contemplated much more than the

evidentiary-posture exception. See State v. Hall, 229 Ga. App. 194,

197 (2) (493 SE2d 718) (1997) (holding that “[t]he denial of a pre-

6 We have held that this exception to the end-of-term rule “allows after-

term reconsideration, at least of constitutional issues, where the ‘evidentiary
posture’ of the issue has changed.” Moon, 287 Ga. at 309 (2) (Nahmias, J.,
concurring). There is also an evidentiary posture exception to the law of the
case doctrine. See, e.g., Williams v. State, 277 Ga. App. 841 (627 SE2d 808)
(2006); Collins v. Carr, 116 Ga. 39, 40 (42 SE 373) (1902). In their briefing, the
parties confuse the exceptions to these two rules, citing cases that apply both.
We have not had occasion to examine the application of the evidentiary-posture
exception to the end-of-term rule in the context of a substantive change in
evidentiary decisional law and because this case can be disposed of on other
grounds, we do not do so here.
10
trial suppression motion, an interlocutory evidentiary ruling, is

subject to review by the presiding judge [on his own motion]”).

Thomas takes issue with Bradley, meanwhile, because it was a civil

case, not a criminal case like Ritter and the one at hand. But as we

pointed out in Ritter, the general legal principle espoused in Bradley

has been extended to criminal cases, too. See Ritter, 272 Ga. at 553

(2) n.3. Thomas’s objection to these cases on the grounds that they

do not support Ritter’s conclusion, therefore, is meritless.

Any arguable tension between Ritter and Moon may be

resolved by examining their differing procedural postures. In Moon,

no new trial had been granted. But new trials had been granted in

Ritter and Smith, as in this case, materially distinguishing them

from Moon. Importantly, Thomas has not directed us to a case in a

similar procedural posture where Moon was applied to curtail a trial

court’s plenary authority over its own evidentiary rulings. Thus, the

procedural posture of this case being more similar to Ritter and

Smith than to Moon and its progeny, we conclude that the Ritter line

of cases controls the analysis, and that the trial court did not err by

11
reconsidering its earlier order on Thomas’s motion to suppress.7

Judgment affirmed. All the Justices concur.

BETHEL, Justice, concurring.

I, of course, concur in the majority opinion. But I write

separately to share a few observations about the end-of-term rule

that we did not consider above. Where our Constitution and Code

are otherwise silent, Georgians have elected to be governed by the

common law of England as it existed on May 14, 1776. See OCGA §

1-1-10 (c) (1); Lathrop v. Deal, 301 Ga. 408, 412 (II) (A) n.9 (801 SE2d

867) (2017) (“In 1784, our General Assembly adopted the statutes

and common law of England as of May 14, 1776, except to the extent

that they were displaced by our own constitutional or statutory law.

7 As a practical matter, mechanical application of Moon’s common-law

interpretation in the procedural posture present here could create logistical
impossibilities upon remand. For example, such an inflexible rule could force
trial courts to adhere to the first trial’s scheduling order, even if that would
require jury selection to begin the day that the court received the remittitur.
Or, as in this case, it could bind a trial court to an erroneous ruling excluding
evidence with no legal basis for that exclusion. In the inverse, strict adherence
to Moon’s rule could even convince a trial court to allow the admission of
evidence in violation of the defendant’s constitutional or statutory rights.
12
That adoption of English statutory and common law remains in force

today.” (citation omitted)). The end-of-term rule is a creature of that

common law. However, our prior iterations of the rule might have

caused us to apply it in a manner that is neither contemplated nor

compelled by the common law.

Where we have held that the end-of-term rule, as articulated

by the common law of England, prohibited judges from reconsidering

interlocutory rulings outside of the term in which they were entered,

I fear that we may have erred. In the appropriate case, I would

welcome the opportunity to revisit the actual metes and bounds of

the historical end-of-term rule. For the reasons outlined in the

opinion of the Court, this is not that case. But if and when we are

called upon to revisit the end-of-term rule, our analysis must begin

with an examination of English common law texts from the relevant

time period.

The end-of-term rule has existed in some form for centuries,

and it appears to find its origin in the practice of enrolling all final

judgments at the end of a term. As Blackstone explained, after trial

13
and verdict, “[i]f judgment [was] not by some [proper] means

arrested within the first four days of the next term after the trial, it

[was] then to be entered on the roll or record.” 3 William Blackstone,

Commentaries on the Laws of England 395 (1st ed. 1768)

(“Blackstone’s Commentaries”). See also Francis Bacon, Ordinances

Made by the Right Honourable Sir Francis Bacon (1642), reprinted

in Lord Bacon’s Law Tracts 287 (2d ed. 1741) (“Bacon’s Law Tracts”)

(explaining that “within two or three days after every term,” a trial

court’s final decrees were “granted at the rolls”). A final judgment

was eligible for enrollment once “all issues [had been] tried and

settled, [ ] all references to the matter ended,” and the judgment had

been signed by the judge or chancellor who oversaw the case.

Blackstone’s Commentaries 453-454. See also Bissell Carpet-

Sweeper Co. v. Goshen Sweeper Co., 72 F. 545, 554 (6th Cir. 1896)

(“Under the English practice, a decree was not in strictness regarded

as final until enrolled, because until then it was liable to be altered

by the court itself,” but after “it was regarded as a final decree,” it

was “entitled as of course to enrollment.”).

14
Once a final judgment was enrolled and the term had ended,

the trial court no longer had the authority to modify that judgment.

See Short v. Kellogg & Co., 10 Ga. 180, 182 (1851) (explaining the

“English rule” that “[a]t the Common Law, no judgment was

amendable after the term at which it was entered”); Winslow v.

Staab, 242 F. 426, 428 (2d Cir. 1917) (“The technical rule of the

English courts is that it is the enrollment of the decree which places

it beyond the control of the court.”). In courts of chancery, for

example, after a term had ended and a final decree had been

enrolled, it could not be “reversed, altered, or explained . . . but upon

bill of review” to a higher court. Bacon’s Law Tracts at 279. See also

Blackstone’s Commentaries at 453 (explaining that after a decree

was “signed and enrolled, it [could] not be reheard or rectified, but

by a bill of review, or by appeal to the house of lords”). And a higher

court’s intervention was necessary because, after the end of the term

in which a final judgment was entered, the trial court no longer

enjoyed jurisdiction over the case. See Bronson v. Schulten, 104 U.

S. 410, 417 (26 LE 797) (1881) (explaining that the common law end-

15
of-term rule “relates to the power of the courts, and not to the mode

of procedure,” and the relevant question is “whether there exists in

the court the authority to . . . modify its final judgments after the

term at which they were rendered”) (emphasis supplied).

However, interlocutory orders were treated differently. When

an order was “an interlocutory[,] not a final[,] one, there [were]

neither technical nor substantial ground[s] for applying to it the

rules pertaining to a bill of review,” including the term-based

limitations on reconsideration. John Simmons Co. v. Grier Bros. Co.,

258 U. S. 82, 90-91 (42 SCt 196, 66 LE 475) (1922). See also First

Nat. Bank of Cincinnati v. Flershem, 290 U. S. 504, 522 (54 SCt 298,

78 LE 465) (1934) (“[A] bill of review will not lie to review an

interlocutory order.”). An interlocutory order only required “a

petition for rehearing,” and because the order underlying such a

petition was merely “interlocutory, the court at any time before final

decree [could] modify or rescind it.” John Simmons Co., 258 U. S. at

88-89. See also Kenon’s Executors v. Williamson, 2 N. C. 350, 352

(1796) (holding that at common law, a “bill of review [would lie] only

16
upon a final decree enrolled,” and that “[b]efore it [was] finally

pronounced and recorded, any mistakes [could] be rectified by a

rehearing”);8 Ogle v. Lee, 6 U. S. 33 (2 LE 198) (1804) (“A court may

at any time reverse an interlocutory decree.”); Welch v. Kingsland,

89 N. C. 179, 181 (1883) (reversing a trial judge who had refused to

modify an interlocutory order entered in an earlier term “on the

ground of a supposed want of power in the judge,” because “[a]n

interlocutory order . . . is always under the control of the court

during the pending of the action” (punctuation omitted)).

In simpler terms, the common law seemed to treat the end-of-

8 North Carolina cases may have particular relevance because that state,

too, follows the common law of England as it existed in 1776, unless otherwise
displaced by law. See Hall v. Post, 323 N. C. 259, 264 (372 SE2d 711) (1988)
(“Unless modified or repealed by the General Assembly or this Court, the
‘common law’ to be applied is the common law of England as it existed when
North Carolina became a sovereign State in 1776.”). As we have observed,
while states “may place a different construction upon a principle of common
law, that does not change the law.” Slaton v. Hall, 168 Ga. 710, 716 (148 SE
741) (1929). Because there is only one body of common law, there is “still only
one right construction” of that law. Id. See also Coon v. Med. Center, 335 Ga.
App. 278 (780 SE2d 118) (2015) (McMillian, J., concurring specially). And while
our Court’s application of the common law is controlling in Georgia, “[i]f this
Court is persuaded that the understanding of the relevant principle of the
common law offered by the courts of [another] state (or of other common-law
courts, for that matter) is superior to our own, we may adopt that position and
apply it to the case at hand.” Coon v. Med. Center, 300 Ga. 722, 730 (2) (797
SE2d 828) (2017).
17
term rule as a jurisdictional limitation on trial courts. But I have

found no suggestion that, as of May 14, 1776, trial courts in England

were under a similar jurisdictional limitation with respect to their

own interlocutory orders. Indeed, the authority I have been able to

locate suggests the opposite. See, e.g., Mills v. Banks, 24 Eng. Rep.

943 (3 P. Wms. 3) (1724) (holding in equity that a trial court had

discretion to reconsider interlocutory decree entered eighteen years

earlier); Cavil v. Burnaford, 97 Eng. Rep. 452 (1 Burr. 569, 2 Keny.

290) (1758) (holding that the “power to set aside interlocutory

judgments, seems incident to justice,” and “[t]here is no authority

nor even dictum, to the contrary: nor is there any reason why [trial

courts] should not have such a power”).

Other authorities, including this Court’s early decisions, also

cast doubt on our more recent articulations of the end-of-term rule.

See, e.g., Langford v. Comms. Of Wilkinson County, 75 Ga. 502, 503

(1885) (holding that, because until “final judgment in the superior

court, the cause was in fieri,” the court could “alter an interlocutory

opinion . . . before final disposition”); Wakefield v. Moore, 65 Ga. 268,

18
270 (1880) (concerning judgments of contempt, “the court may

review and annul its [contempt judgment] at the same or at a

subsequent term”); W. P. Love & Co. v. Young, 69 N. C. 65, 66-67

(1873) (explaining that no “rule of law [forbade] his Honor, at Spring

Term, 1873, from reconsidering an interlocutory order made at Fall

Term, 1872,” and that if the judge “became satisfied, that . . . the

case was not properly constituted before him, it was his duty to

dismiss the proceeding, notwithstanding he at Fall Term, 1872,

failed to take the same view of the case”); United States v. 111,000

Acres of Land in Polk and Highlands Counties, Florida, 155 F2d 683,

685 (3) (5th Cir. 1946) (explaining that the common law “was well

settled that, while during the term of the court all its judgments are

‘in the breast of the court’ and subject to its control, after the term

ends the final judgments, as distinguished from interlocutory ones,

cannot be altered”).

So, what precipitated our apparent deviation from this

seemingly settled law? Upon review of our opinions, I believe the

rule as we have articulated it began to take shape in McCandless v.

19
Conley, 115 Ga. 48, 50-51 (41 SE 256) (1902). There, we broadly

stated that “[t]he mere fact that a cause is still pending, no final

judgment on the merits having been rendered, does not preserve in

the court power to revoke interlocutory rulings made at a term

which has passed.” Id. To support this iteration of the end-of-term

rule, we cited Henry Campbell Black’s Treatise on the Law of

Judgments (1891) (“Black’s Treatise”); McCaulla v. Murphy, 86 Ga.

475, 481 (12 SE 655) (1890); Dyson v. Southern R. Co., 113 Ga. 327,

330 (38 SE 749) (1901); Watkins v. Brizendine, 111 Ga. 458 (36 SE

807) (1900); and Cralle v. Cralle, 84 Va. 198 (6 SE 12) (1887). But I

cannot make out how any of those authorities support the

proposition for which we cited them.

In support of our holding in McCandless, we cited Black’s

Treatise, which said, among other things, that “[d]uring the term

the record is said to be in the breast of the judge; after it is over it is

upon the roll.” McCandless, 115 Ga. at 51 (quoting Black’s Treatise

at §§ 153, 154, and 157). But, as explained at length above, only final

judgments that were “upon the roll” carried term-based time limits

20
on their reconsideration.9 Moreover, § 308 of the very same volume

of Black’s Treatise explicitly exempts interlocutory orders from end-

of-term finality. See Black’s Treatise at § 308 (explaining that “[a]n

interlocutory judgment or decree, made in the progress of a cause, is

always under the control of the court until final decision of the suit,

and it may be modified or rescinded, upon sufficient grounds shown,

at any time before final judgment, though it be after the term in

which the interlocutory sentence was given”).10

9 Indeed, not long after McCandless, we recognized that, while a certain

order “may be in its nature a judgment, it belongs to that class of judgments
usually designated as interlocutory orders, and has none of the elements of a
final judgment.” Field v. Peel, 122 Ga. 503, 505-506 (50 SE 346) (1905). We
even explained that “[t]he entry of a final judgment terminates [a court’s]
jurisdiction of the controversy, but an entry of an interlocutory order does not
have this effect, and such an order is subject to be vacated [ ] whenever
sufficient reason is shown therefor.” Id. at 506.
10 Other prominent legal scholars around the time of McCandless echoed

Black’s view. See, e.g., 1 Abraham Clark Freeman, Treatise on the Law of
Judgments 391-392, § 200 (5th ed. 1925) (“Any merely interlocutory order or
judgment may be vacated at a term subsequent to that at which it was entered.
The general rule limiting the power to modify or vacate, to the term, applies
only to final judgments and decrees and hence does not prevent such action
where only a written opinion has been filed which is apparently not intended
as a final decree.”); 17 Am. & English Encyclopaedia of Law 817-818 (2d ed.
1900) (The “well established” and “general” rule prohibiting amendment of
judgments after the expiration of the term at which they were rendered
“applies only to final judgments, and has no application to a judgment or order
which does not put an end to the proceedings, but leaves them in fieri, as in

21
Neither do the cases that we cited support the proposition that

trial courts are bound by their own interlocutory orders after term-

end. Watkins did not address interlocutory orders at all; it concerned

the reinstatement of a case after a final judgment had been entered

in an earlier term and, for that reason, seems to fit easily into the

category of “enrolled” final decisions for purposes of the common law

end-of-term rule. See 111 Ga. at 460. Cralle applied the law of the

case doctrine, not the end-of-term rule, and was therefore irrelevant

to the issues under consideration in McCandless. See 84 Va. at 198

(holding that a trial court could not reconsider part of a judgment

that had been affirmed on appeal). Dyson, meanwhile, concerned

amendments to the pleadings in a situation unrelated to terms of

court. See 113 Ga. at 330. And McCaulla construed a statutory

deadline for filing a demurrer. See 86 Ga. at 481.

In later cases where we have discussed the end-of-term rule,

we have uncritically cited McCandless as standing for the common

the case of an interlocutory judgment[.]”); John Lilly, Practical Register: Or a
General Abridgement of the Law 70 (2d ed. 1735) (explaining that judges were
empowered to “amend a Judgment, though of another Term”).
22
law proposition that interlocutory orders cannot be modified outside

of the term in which they were entered, failing to grapple with the

common law history or McCandless’s misplaced reliance upon its

cited authorities.11 See, e.g., Lemcon USA Corp. v. Icon Technology

Consulting, 301 Ga. 888 (804 SE2d 347) (2017) (citing Moon v. State,

287 Ga. 304, 305 (696 SE2d 55) (2010) (citing McCandless and

Black’s Treatise as supporting the proposition that at common law,

interlocutory orders could not be modified after term-end)). But our

Code binds us to follow the English common law, not our own

potentially errant interpretation of that common law. Thus, if in a

future case where the issue is properly presented, we determine that

our understanding of the common law end-of-term rule is incorrect,

we will be compelled to engage in a stare decisis analysis to

determine whether that incorrect articulation must continue. Today

is not that day.

11 Two notable exceptions to this trend include Ritter v. State, 272 Ga.

551, 553 (2) (532 SE2d 692) (2000), and Smith v. State, 292 Ga. 620, 622 (3)
(740 SE2d 158) (2013), both of which viewed the common law as allowing trial
courts to modify their interlocutory rulings and orders before final judgment.
23
Decided May 29, 2024.

Murder. Fulton Superior Court. Before Judge McBurney.

Howard J. Weintraub, Benjamin B. Alper; Shein Brandenburg

& Schrope, Elizabeth A. Brandenburg, for appellant.

Fani T. Willis, District Attorney, Michael S. Carlson, Kevin C.

Armstrong, Jeffrey M. Hawkins, Assistant District Attorneys;

Christopher M. Carr, Attorney General, Beth A. Burton, Deputy

Attorney General, Meghan H. Hill, Clint C. Malcolm, Senior

Assistant Attorneys General, for appellee.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: May 29, 2024

S24A0174. THOMAS v. THE STATE.

BETHEL, Justice.

This Court granted the interlocutory application of Tyler Jarel

Thomas, who timely sought review of a trial court order that vacated

its earlier grant of his motion to suppress. Thomas argues that the

end-of-term rule, which we have held imposes a term-based time

restriction on a trial court’s authority over its interlocutory orders

in criminal cases, should have barred the trial court’s

reconsideration, even though a new trial had been granted in his

case. But for the reasons explained below, we conclude that

Thomas’s argument fails, so we affirm.

1. In February 2014, Thomas was indicted for the murder of

Ashley Brown. Before his indictment, law enforcement executed a

court order for Thomas’s phone records, including cell site location
information (CSLI). At the time investigators obtained those

records, access to them was governed by federal and state statutes.

In 2014, while some federal courts held differently, “no appellate

precedent binding in Georgia courts held that a request or demand

by a governmental entity to a cell phone service provider that the

provider produce its records related to a customer’s account

constituted a search under the Fourth Amendment” to the United

States Constitution. Lofton v. State, 310 Ga. 770, 776 (854 SE2d 690)

(2021). In other words, at that time in Georgia courts, a court order

was legally sufficient to obtain records like the ones at issue here; a

warrant was unnecessary.1

Nonetheless, Thomas moved to suppress the CSLI in June

2014, arguing that it was obtained in violation of the Fourth

Amendment. The trial court agreed with Thomas and granted his

1 This changed with the United States Supreme Court’s decision in
Carpenter v. United States, 585 U. S. 296 (138 SCt 2206, 201 LE2d 507) (2018),
which held that compelling a cell phone service provider to turn over a user’s
historical CSLI of seven days or more constitutes a search under the Fourth
Amendment and that, before such a search, “the Government’s obligation is a
familiar one—get a warrant.” Id. at 317 (IV).
2
motion, relying in part upon United States v. Davis, 754 F3d 1205

(11th Cir. 2014) (“Davis I”), an Eleventh Circuit decision that held a

warrant was necessary to obtain CSLI. But a year after it decided

Davis I, the Eleventh Circuit reconsidered the case, reversing its

position and holding that the Fourth Amendment to the United

States Constitution did not require a warrant to obtain CSLI. See

United States v. Davis, 785 F3d 498 (11th Cir. 2015) (deciding that

a court order was sufficient to obtain CSLI from a service provider)

(“Davis II”).2

In May 2017, the day that voir dire was scheduled to begin, the

State asked the trial court to reconsider its suppression order in

light of the Eleventh Circuit’s reconsideration of Davis I. Thomas

argued that the end-of-term rule prohibited the trial court’s

reconsideration of the suppression order, even though the decisional

law upon which the previous order relied had changed. While

recognizing a change in the law underlying the suppression order,

2 Neither Davis I nor Davis II were binding authority on the trial court,

but the court looked to Davis I as “instructive” when granting Thomas’s motion
to suppress.
3
the trial court opined that the end-of-term rule, as articulated in

Moon v. State, 287 Ga. 304 (696 SE2d 55) (2010), divested it of the

authority to reconsider its own prior interlocutory ruling.

At trial, the jury found Thomas guilty of malice murder and

related crimes. He timely filed a motion for new trial, which was

granted by the trial court. We affirmed the grant of a new trial on

the grounds that the State had committed a Brady violation, see

Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LEd2d 215) (1963),

by failing to disclose a deal with a witness. See State v. Thomas, 311

Ga. 407 (858 SE2d 52) (2021) (“Thomas I”). On appeal, the State did

not challenge, and this Court did not address, the trial court’s ruling

suppressing the CSLI evidence.

Upon remand to the trial court, the State again moved for

reconsideration of the CSLI suppression order. Thomas, meanwhile,

reprised his end-of-term rule argument. But this time, the trial court

agreed with the State,3 vacated the earlier suppression order, and

3 By our count, the motion to reconsider was granted by the third judge

overseeing this case; the first judge suppressed the evidence in 2014, and the
second judge declined reconsideration before the 2017 trial.
4
held that the CSLI could be tendered at trial. In so holding, the trial

court expressly rejected Thomas’s argument based on the end-of-

term rule, explaining that reconsideration of the evidentiary ruling

was proper because “[t]here is no final judgment in this case,”

“questions of suppression remain ripe and open for reconsideration,”

“no appellate court has opined on the question of the admissibility

of the CSLI in this case,” and the CSLI issue “has remained within

the breast of the trial court since the inception of this case.” This

appeal followed.

2. On appeal, Thomas argues, as he did below, that the end-of-

term rule should have prohibited the trial court’s reconsideration of

its order on his motion to suppress. Subject to certain exceptions,

which are not applicable here, we have said that the end-of-term

rule limits “a trial court’s inherent power to revoke interlocutory

rulings” in criminal cases to the end of the term in which the ruling

was entered.4 Kelly v. State, 315 Ga. 444, 447 (883 SE2d 363) (2023)

4 The parties, the trial court, and some case law occasionally conflate the

end-of-term rule and the law of the case doctrine. The two are often present in

5
(quoting Moon, 287 Ga. at 304). Because the order on the motion to

suppress in this case was reconsidered several years after the end of

the term in which it was granted, Thomas contends that the trial

court’s reconsideration was improper. For its part, the State argues

that the reconsideration was not improper, because there has been

no final judgment in this case and we have also said that trial courts

“retain[ ] broad discretion over interlocutory evidentiary rulings

which may be modified at any time until entry of final judgment,”

not just until the end of the term in which they were entered. Ritter

v. State, 272 Ga. 551, 553 (2) (532 SE2d 692) (2000) (holding that a

trial court did not err by reconsidering an out-of-term interlocutory

ruling after the declaration of a mistrial) (emphasis supplied). Thus,

the issue before us is whether, after a new trial has been granted in

the same case and have related concepts, but they are distinct. The law of the
case doctrine provides that appellate rulings are binding in all subsequent
proceedings. See OCGA § 9-11-60 (h) (“[A]ny ruling by 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 as the case may be.”). While the law of the case doctrine is found in
the Civil Practice Act, we have held that it applies in criminal cases, too. See
Roulain v. Martin, 266 Ga. 353, 354 (466 SE2d 837) (1996). But the law of the
case doctrine does not apply here, because no appellate court has ruled on the
disputed motion to suppress.
6
a criminal case, a trial court is prohibited from reconsidering an

interlocutory ruling that it entered in an earlier term.

In civil cases, the end-of-term rule has been explicitly curtailed

by statute. See OCGA § 9-11-6 (c) (“The continued existence or

expiration of a term of court in no way affects the power of a court

to do any act or take any proceeding in any civil action which has

been pending before it, except as otherwise specifically provided by

law.”). Compare OCGA § 15-1-3 (6)-(7) (“Every court has power . . .

[t]o amend and control its processes and orders, so as to make them

conformable to law and justice . . . before final judgment.”). 5 But we

5 The State contends that OCGA § 15-1-3 (6)-(7), while not abrogating

the common law end-of-term rule as explicitly as in the Civil Practice Act,
implicitly abolished the rule’s application to interlocutory orders in criminal
cases because it grants courts the authority to “amend and control” their orders
“until final judgment,” as opposed to limiting that authority to the term in
which an order was entered. Id. But see Crowell v. Crowell, 191 Ga. 36 (11
SE2d 190) (1940). Indeed, if that is an accurate reading of the statute, our
persistent application of this common law rule has been in error, because we
are only bound to follow the common law if it has not been superseded by
statute. See OCGA § 1-1-10 (c) (1); Moon, 287 Ga. at 305 (Nahmias, J.,
concurring) (explaining that the end-of-term rule, “which comes from the pre-
Revolution English common law, seems outdated, but this Court probably
lacks the authority to change it,” because our Code requires us to follow the
English common law unless otherwise displaced by law). If the State is correct,
OCGA § 15-1-3 (6)-(7) permits trial courts to revise their own rulings, even
those rendered in an earlier term, as long as that revision occurs before final

7
have continued applying the end-of-term rule in criminal cases, even

to interlocutory orders. See, e.g., Moon, 287 Ga. at 304; Hipp v. State,

293 Ga. 415, 417 (746 SE2d 95) (2013).

We have consistently held, however, that when a new trial has

been granted, trial courts are not prohibited from reconsidering

their previous orders. See, e.g., Smith v. State, 292 Ga. 620, 622 (3)

(740 SE2d 158) (2013) (citing Ritter, 272 Ga. at 553) (holding that,

upon remand, a trial court is not “required to rehear all pretrial

motions as though they had never before been considered,” but that

it has the authority to do so); Salisbury v. Grimes, 223 Ga. 776, 778

(158 SE2d 412) (1967) (“When appellant [is] granted a new trial, it

wipe[s] the slate clean as if no previous conviction and sentence had

existed.”). Under the reasoning of Ritter and Smith, therefore,