CourtListener 10680237

Testo completo

320 Ga. 84
FINAL COPY

S24A0835. WIPFEL v. THE STATE.

WARREN, Justice.

After a jury trial in 2016, Kristian Wipfel was convicted of

malice murder and other crimes in connection with the shooting

death of eight-year-old Jai’mel Anderson.1 In his sole enumeration

1 The crimes occurred on January 6, 2015. In March 2015, a Peach
County grand jury indicted Wipfel, Dennis Eason, Jr., Antonio Garvin, Jeremy
Jackson, and Tevin Sams for malice murder, felony murder, aggravated
assault against Anderson’s brother J. A., making terroristic threats against
Dejad Williams, and two counts of possession of a firearm during the
commission of a felony. Garvin and Jackson both pled guilty to two counts of
aggravated assault in exchange for their truthful testimony at trial. Their
cases are not part of this appeal. Wipfel, Eason, and Sams were tried together
from October 31 to November 9, 2016. The jury found Wipfel not guilty of
making terroristic threats, but guilty of the remaining counts. The jury found
Eason and Sams guilty of all counts, except, with respect to Sams, the count of
making terroristic threats. Eason’s case is not part of this appeal, and we
affirmed Sams’s convictions in Sams v. State, 314 Ga. 306 (875 SE2d 757)
(2022). The trial court sentenced Wipfel to serve life in prison without the
possibility of parole for malice murder, 20 concurrent years for aggravated
assault, and five consecutive years for each of the firearm offenses. The trial
court purported to merge the felony-murder count into the malice-murder
conviction, but the felony-murder count was actually vacated by operation of
law. See Malcolm v. State, 263 Ga. 369, 371-372 (434 SE2d 479) (1993). Wipfel
filed a timely motion for new trial, which he later amended through counsel.
After an evidentiary hearing in May 2021, the trial court entered an order
denying the motion on February 10, 2022.
On May 3, 2022, Wipfel filed a motion to set aside the February 10, 2022
of error, Wipfel contends that the trial court plainly erred when it

failed to instruct the jury on involuntary manslaughter as a lesser

offense of malice murder. For the reasons explained below, we

affirm.

1. As relevant to Wipfel’s enumeration of error on appeal, the

evidence presented at Wipfel’s trial showed the following. Wipfel,

Dennis Eason, Jr., Tevin Sams, Antonio Garvin, and Garvin’s cousin

Jeremy Jackson were together on the night of January 5, 2015.

Eason was a drug dealer, and Wipfel sold drugs on his behalf. Eason

was involved in a dispute over drugs and money with Dejad

order on the ground that he was not timely notified of its entry, and on May
20, 2022, Wipfel filed a notice of appeal. On May 31, 2022, the trial court
entered an order setting aside and re-entering the February 10, 2022 order. On
April 19, 2023, this Court vacated the trial court’s May 31, 2022 order and
dismissed Wipfel’s appeal on the ground that the May 31 order was filed after
the notice of appeal divested the trial court of jurisdiction, such that the May
31 order was a nullity, and Wipfel’s notice of appeal was not timely filed from
the date of the entry of the original order on the motion for new trial on
February 10, 2022. We noted, however, that because Wipfel did not receive
timely notice of the February 10, 2022 order, he could file another motion to
set aside that order. See Cambron v. Canal Ins. Co., 246 Ga. 147, 148-149 (269
SE2d 426) (1980). On April 24, 2023, Wipfel filed such a motion. Nearly ten
months later, on February 7, 2024, the trial court entered an order setting
aside the February 10, 2022 order and re-entering it. Wipfel then filed a timely
notice of appeal, and the case was docketed to the April 2024 term of this Court
and submitted for a decision on the briefs.
2
Williams, who lived with his girlfriend and her sons, eight-year-old

Anderson and six-year-old J. A., in an apartment in Fort Valley.

At trial, Garvin testified as follows. Wipfel, Eason, Sams,

Garvin, and Jackson met at Jackson’s apartment in Macon, where

Eason discussed his dispute with Williams. Spurred on by Eason,

the five men decided to drive to Fort Valley and confront Williams

to “get [Eason’s] product or his money back.” When the men arrived

at the apartment complex, they saw Williams standing outside an

apartment building holding a gun. They parked near the back of the

complex and got out of the cars. Eason and Sams were carrying

handguns, and Eason told Wipfel, “[Y]ou have to do this for me.”

Eason, Sams, and Wipfel walked from the cars to the apartment

complex. Eason walked back toward the cars, and then Garvin heard

gunshots.

Moments later, Sams and Wipfel ran back to the cars; Wipfel

got in Garvin’s car; Eason and Sams got in Jackson’s car; and they

all fled to Jackson’s apartment. There, Wipfel and Sams stated “that

they shot into the doorway of an apartment.” Wipfel also said that

3
Sams shot through the door first and then Wipfel started shooting;

Garvin thought that Wipfel used Eason’s gun.

Jackson told a similar story. He testified that on the evening of

January 5, he, Wipfel, Eason, Sams, and Garvin discussed “an

altercation between [Eason] and some other guy” before the group

made “a decision to go down to Fort Valley.” After the two cars

parked near the apartment complex, Sams and Wipfel—who was

carrying Eason’s “silver and black gun”—got out and talked with

Eason. Eason then got back in the car with Jackson, and Wipfel and

Sams went toward the apartment complex. Jackson then “heard

shots” and saw Wipfel and Sams “running back” to the cars. Wipfel

got in Garvin’s car, and Sams got in Jackson’s car, and the men

drove back to Macon.

Sams testified that he went to the apartment complex with the

other men and, when they arrived, Wipfel and Eason went into the

apartment complex, gunshots rang out, and Wipfel and Eason—who

had a gun in his hand—then ran back to the cars. Sams admitted

that he had owned a .40-caliber Glock handgun, but claimed that it

4
was stolen several months before the shooting.

Williams—the apparent target who was not wounded in the

shooting—testified that in the early morning hours of January 6, he

received multiple threatening text messages from a phone number

he did not recognize and that he responded to the messages with

threats of his own. Moments later, multiple shots were fired into the

door to Williams’s apartment. Williams was in the bedroom, and

eight-year-old Anderson, who was playing a video game, and six-

year-old J. A., who was sleeping, were in the living room. Anderson

was shot twice: once in the leg and once in the upper abdomen. He

later died.

Wipfel did not testify at trial. His defense strategy was to argue

that he did not possess the requisite intent to commit malice murder

because he was merely present at the scene of the crimes.

2. Wipfel contends that the trial court plainly erred by failing

to instruct the jury on involuntary manslaughter based on reckless

conduct as a lesser offense of malice murder. Wipfel did not ask for

this instruction at trial but contends the trial court should have

5
given it on its own. Specifically, he argues that the evidence at trial

showed that he lacked the requisite malice to shoot and kill

Anderson and that he merely participated in shooting at Williams’s

apartment door, which amounted to the misdemeanor crime of

reckless conduct, and—without any intent to do so—caused

Anderson’s death. See OCGA §§ 16-5-3 (a) (“A person commits the

offense of involuntary manslaughter in the commission of an

unlawful act when he causes the death of another human being

without any intention to do so by the commission of an unlawful act

other than a felony.”); 16-5-60 (b) (“A person who causes bodily harm

to or endangers the bodily safety of another by consciously

disregarding a substantial and unjustifiable risk that his or her act

or omission will cause harm or endanger the safety of the other

person” is guilty of misdemeanor reckless conduct where “the

disregard constitutes a gross deviation from the standard of care

which a reasonable person would exercise in the situation.”).

As Wipfel concedes, because he did not object to the trial court’s

omission of an instruction on involuntary manslaughter based on

6
reckless conduct, we review his claim for plain error only. See OCGA

§ 17-8-58 (b); Acosta v. State, 311 Ga. 320, 327 (857 SE2d 701) (2021).

For an appellant to establish plain error,

first, there must be an error or defect—some sort of
deviation from a legal rule—that has not been
intentionally relinquished or abandoned, i.e.,
affirmatively waived, by the appellant. Second, the legal
error must be clear or obvious, rather than subject to
reasonable dispute. Third, the error must have affected
the appellant’s substantial rights, which in the ordinary
case means he must demonstrate that it affected the
outcome of the trial court proceedings. Fourth and finally,
if the above three prongs are satisfied, the appellate court
has the discretion to remedy the error—discretion which
ought to be exercised only if the error seriously affects the
fairness, integrity or public reputation of judicial
proceedings.

Lewis v. State, 311 Ga. 650, 664 (859 SE2d 1) (2021) (citation and

punctuation omitted). “An appellant must establish all four

elements of the test in order to demonstrate plain error, so satisfying

this test is difficult, as it should be.” Clark v. State, 315 Ga. 423, 440

(883 SE2d 317) (2023) (citation and punctuation omitted).

(a) The State contends that we can decide the plain-error

analysis on the basis that the trial court did not err at all in this

7
case. Citing State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976), the

State contends that “the law in Georgia remains that a trial court

does not err when it does not sua sponte charge the jury on an

unrequested instruction for a lesser-included offense.” As we explain

more below, we agree that the substantive rule Stonaker sets forth

in this regard, which our Court has applied dozens of times since

Stonaker was decided, is still valid and applies today—even after

our appellate courts’ application of plain-error review for “alleged

jury instruction errors to which no objection was asserted at trial.”

See State v. Kelly, 290 Ga. 29, 31 (718 SE2d 232) (2011) (interpreting

OCGA § 17-8-58). And we apply that rule here to conclude that

Wipfel’s claim of instructional error fails on plain-error review. In so

doing, however, we explain our misgivings about the approach this

Court took in Stonaker when it announced various rules of criminal

law pertaining to jury instructions.

In Stonaker, this Court reviewed the Court of Appeals’ decision

reversing a defendant’s conviction for child molestation on the basis

that the trial judge had not charged the jury on a “lesser offense to

8
that offense delineated in the indictment . . . even though no such

charge was requested in writing.”2 Our holding in that case was

narrow: because “simple battery . . . is not a lesser crime included in

the crime of child molestation,” as Georgia’s criminal code defined

those offenses, “[i]t was therefore not error for the trial judge to fail

to charge the jury on the crime of simple battery in this case.” Id. at

2-3. Yet our Court proceeded to announce four “rules in this area of

criminal law” in an apparent “attempt to clarify for the trial courts

what must be charged and what may be charged and what need not

be charged in the area of lesser included crimes in criminal trials.”

Id. at 2.3 We did so without conducting any meaningful analysis and

2 The Court of Appeals also concluded that the trial court had committed

reversible error based on a separate instructional error that did not relate to
lesser crimes. This Court held that conclusion to be erroneous. See Stonaker,
236 Ga. at 1, 3.
And although it is not at issue here, we note that “[a] criminal defendant
is ordinarily required to present written requests for any desired jury
instructions.” Woods v. State, 291 Ga. 804, 809 (733 SE2d 730) (2012) (citation
and punctuation omitted). See also OCGA § 5-5-24 (b); Uniform Superior Court
Rule 10.3.
3 The other three “rules” were:

The trial judge must charge the jury on each crime specified
in the indictment or accusation, unless the evidence does not

9
without citing any relevant authority—common law, decisional law,

statute, or otherwise—and even though none of the four “rules” was

required to resolve the defendant’s claim of error.

The State has raised the second of the Stonaker “rules” in

Wipfel’s appeal: that “[t]he trial judge also may, of his own volition

and in his discretion, charge on a lesser crime of that included in the

indictment or accusation. However, his failure to do so, without a

written request by the [S]tate or the accused, is not error.” 236 Ga.

at 2. Though that substantive legal rule was necessarily dicta in

warrant a conviction of such crime, or unless the [S]tate has
affirmatively withdrawn a crime or stricken it from the indictment
or accusation.
...
The [S]tate or the accused may, by written application to the
trial judge at or before the close of the evidence, request him to
charge on lesser crimes that are included in those set forth in the
indictment or accusation, and his failure to so charge as requested,
if the evidence warrants such requested charge or charges, shall
be error.
An erroneous charge on a lesser crime to that set forth in the
indictment or accusation does not rise to the level of reversible
error, unless such charge was harmful to the accused as a matter
of law.

Stonaker, 236 Ga. at 2. Because those legal rules are not at issue in this appeal,
we do not analyze them here.
10
Stonaker,4 this Court applied it as an alternative holding just days

later in another criminal case. See Smith v. State, 236 Ga. 5, 10 (222

SE2d 357) (1976) (in rejecting appellant’s claim that the trial court

erred by failing to charge a lesser offense in the absence of a request

to do so, stating that “today this court has held that it is not error

for the trial court, in the absence of a written request, to fail to

charge on a lesser crime included in the crime charged in the

indictment or accusation . . . regardless of whether the evidence

would have authorized or demanded such a charge,” and citing and

applying Stonaker, 236 Ga. at 1). And we have continued to apply

that substantive rule, first announced in Stonaker, for decades. See

also, e.g., Welborn v. State, 236 Ga. 319, 319 (223 SE2d 698) (1976);

Bouttry v. State, 242 Ga. 60, 62 (247 SE2d 859) (1978); Chastain v.

4 Indeed, a substantive rule about a trial court instructing a jury about

a lesser crime has no legal bearing in a case like Stonaker, where the allegedly
lesser crime on which the defendant wanted the jury instructed is not, in fact,
a lesser crime. See Stonaker, 236 Ga. at 2-3 (“Under the facts of this case we
hold that simple battery as defined in . . . the Criminal Code of Georgia is not
a lesser crime of child molestation.”). See also Zepp v. Brannen, 283 Ga. 395,
397 (658 SE2d 567) (2008) (explaining that “a statement in an opinion
concerning some rule of law or legal proposition not necessarily involved nor
essential to determination of the case in hand” is dicta) (citation and
punctuation omitted).
11
State, 255 Ga. 723, 725 (342 SE2d 678) (1986); Hawkins v. State, 267

Ga. 124, 124 (475 SE2d 625) (1996); Wyman v. State, 278 Ga. 339,

341 (602 SE2d 619) (2004); Brown v. State, 285 Ga. 324, 327-328

(676 SE2d 221) (2009).

We acknowledge, however, some confusion about whether and

how to apply Stonaker (and its progeny) in the wake of Kelly, 290

Ga. at 31-32, in which “this Court noted the similarities between

OCGA § 17-8-58 (b) and Federal Rule of Criminal Procedure 52 (b),

and looked to federal cases which articulated and applied the plain

error standard found in that Rule.” Cheddersingh v. State, 290 Ga.

680, 683 (724 SE2d 366) (2012).5 The Court of Appeals recently

grappled with this question in Miles v. State, 362 Ga. App. 288 (868

SE2d 262) (2022).6 There, the defendant had been convicted of

5 See Smith v. State, 292 Ga. 316, 319 (737 SE2d 677) (2013) (“The ‘plain

error’ test adopted by this Court in State v. Kelly . . . authorizes reversal of a
conviction if the instruction was erroneous, the error was obvious, the
instruction likely affected the outcome of the proceedings, and the error
seriously affected the fairness, integrity or public reputation of judicial
proceedings.”).

6 Other cases illustrate the different approaches taken when applying

the rule from Stonaker (that is also at issue in this case) after articulating the

12
multiple criminal offenses and did not request that the jury be

charged on two lesser offenses, yet later claimed on appeal that the

trial court committed plain error by failing to charge the jury on the

lesser offenses. In evaluating that argument, the Court of Appeals

noted that it was not entirely clear whether, in such a circumstance,

an appellate court should evaluate the claim of error under Kelly’s

plain-error standard or under the substantive rule announced in

Stonaker that a “trial judge never errs in failing to instruct the jury

on a lesser included offense where there is no written request to so

charge.” See Miles, 362 Ga. App. at 291 (quoting Martin v. State, 349

Ga. App. 656, 659 (825 SE2d 227) (2019).7 The court then went on to

plain-error standard review of unpreserved errors in jury instructions in Kelly.
See, e.g., Martin v. State, 349 Ga. App. 656, 659 (825 SE2d 227) (2019)
(applying Stonaker and no plain error review); McMurtry v. State, 338 Ga. App.
622, 625 (791 SE2d 196) (2016) (applying a Stonaker progeny and no plain-
error review); Styles v. State, 329 Ga. App. 143, 149-150 (764 SE2d 166) (2014)
(applying plain-error review only); Anthony v. State, 317 Ga. App. 807, 811-812
(732 SE2d 845) (2012) (same); Ingram v. State, 317 Ga. App. 606, 607 (732
SE2d 456) (2012) (applying both a Stonaker progeny and plain-error review “to
the extent we are required to evaluate whether plain error resulted from the
trial court’s failure to charge on the lesser included offense”).
7 The Court of Appeals also raised a third possibility: evaluating the

claim of error under a line of cases “developed before the enactment of OCGA
§ 17-8-58 in 2007” in which appellate courts apply a “predecessor statute to

13
analyze the defendant’s claim of error “under the plain error

standard of review of Kelly rather than the simplified no error

approach of Stonaker,” but nonetheless looked to Stonaker to

determine whether there was “a clear or obvious error that

substantially affected the outcome of the proceedings.” Miles, 362

Ga. App. at 293-294 (citing Kelly, 290 Ga. at 33). It then applied the

substantive rule from Stonaker to conclude that the trial court had

not plainly erred by not instructing on the lesser offense that the

defendant did not request at trial, but later complained of on appeal.

Id. at 294.

OCGA § 5-5-24 (c),” which said that “notwithstanding any other provision of
this Code section, the appellate courts shall consider and review erroneous
charges where there has been a substantial error in the charge which was
harmful as a matter of law, regardless of whether objection was made
hereunder or not.” See Miles, 362 Ga. App. at 292. The cases taking this
approach were decided before Kelly in 2011. As we explained in Kelly, “[p]rior
to the enactment of OCGA § 17-8-58, OCGA § 5-5-24 (c) was the exclusive
avenue in all cases for appellate review of jury instruction errors that had been
waived[.]” Kelly, 290 Ga. at 32 n.3. In Kelly, we held that “under OCGA § 17-8-
58 (b), appellate review for plain error is required whenever an appealing party
properly asserts an error in jury instructions.” See id. at 32. And we clarified
that our construction of OCGA § 17-8-58 (b) was “consonant with” OCGA § 5-
5-24 (c). See id. All of which is to say that in a post-Kelly world, appellate courts
should not rely on the line of cases the Court of Appeals described above when
evaluating claims of alleged error in jury instructions to which no objection
was raised at trial. See Kelly, 290 Ga. at 29.

14
We take this opportunity to clarify that the plain-error review

standard set forth in OCGA § 17-8-58 (b) and applied in Kelly did

not undermine the validity of the substantive legal rule first

announced in Stonaker that a trial court’s failure to charge the jury

on a lesser crime without a written request to do so “is not error.”

Stonaker, 236 Ga. at 2. That is because Stonaker articulated a

substantive rule about whether a trial court’s failure to give a

particular jury instruction was legal error; it did not set forth a

framework governing when a claim of instructional error is subject

to appellate review. Compare Kelly, 290 Ga. at 32 (overruling

decisions from this Court and the Court of Appeals decided after

enactment of OCGA § 17-8-58 (b) concluding—without addressing

plain error—that appellate review of jury instructions was waived if

claims of instructional error were not raised below, and overruling

such cases to the extent such cases could be construed as permitting

something other than “appellate review for plain error . . . whenever

an appealing party properly asserts an error in jury instructions”).

We also take this opportunity to express our disapproval of the

15
way our Court announced legal “rules” in Stonaker on its own

accord, without citing any authority in support, in a case that did

not present the issues the rules would resolve (that is, in dicta). See

Stonaker, 236 Ga. at 2. See also Zepp v. Brannen, 283 Ga. 395, 397

(658 SE2d 567) (2008). Whatever good intention our Court may have

had in doing so,8 our job is to discern and apply the law—not to

create it. See, e.g., Sons of Confederate Veterans v. Henry County Bd.

of Commrs., 315 Ga. 39, 52 n.10 (880 SE2d 168) (2022) (“The

limitations on the judicial power prevent us from rendering advisory

opinions on Georgia law.”); Fulton County v. City of Atlanta, 299 Ga.

676, 677 (791 SE2d 821) (2016) (“It is a settled principle of Georgia

8 Justice Hill, for example, stated in a special concurrence that he felt

“compelled . . . to state [his] reasons” for signing onto the portion of the majority
opinion that announced the “no error” legal rule discussed above. In that
special concurrence, he explained that the rule in place before Stonaker was
decided—that a “trial judge was required to charge, without request, the law
applicable to lesser included offenses, where the evidence would have
authorized conviction on a lesser offense”—allowed for gamesmanship insofar
as a criminal defendant who was “accused of an offense, as to which there was
a lesser included offense as shown by the evidence” at trial could “avoid
referring to the lesser offense at his first trial and if the trial judge only charged
the jury according to the defendant’s announced theory of defense,” then he
would be “virtually assured of a second trial” because of the trial court’s
instructional error. See Stonaker, 236 Ga. at 3-4.

16
law that the jurisdiction of the courts is confined to justiciable

controversies, and the courts may not properly render advisory

opinions.”).9

(b) Having clarified that the substantive rule from Stonaker at

issue in this case remains valid, we now apply that rule here. To

prevail on his claim of instructional error, Wipfel must demonstrate

that the trial court’s failure to charge on a lesser offense constituted

legal error. But no one asked for such a charge at trial, and the

failure to charge on a lesser crime than the crime included in the

indictment, “without a written request by the [S]tate or the accused,

is not error.” See Stonaker, 236 Ga. at 2; Smith, 236 Ga. at 10.

Having failed to demonstrate legal error, Wipfel’s claim of plain

error fails.

Judgment affirmed. All the Justices concur, except Boggs, C. J.,
who concurs in judgment only in Division 2.

9 Some of us have expressed concern about the soundness of the Stonaker

rule articulated above and would be willing to revisit it in an appropriate case.
17
Decided October 15, 2024.

Murder. Peach Superior Court. Before Judge Mincey.

Ahmad R. Crews, for appellant.

Anita R. Howard, District Attorney, Cynthia T. Adams, Daniel

P. Bibler, Neil A. Halvorson, Assistant District Attorneys;

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

Attorney General, Meghan H. Hill, Michael A. Oldham, Clint C.

Malcolm, Senior Assistant Attorneys General, for appellee.

In the Supreme Court of Georgia

Decided: October 15, 2024

S24A0835. WIPFEL v. THE STATE.

WARREN, Justice.

After a jury trial in 2016, Kristian Wipfel was convicted of

malice murder and other crimes in connection with the shooting

death of eight-year-old Jai’mel Anderson.1 In his sole enumeration

1 The crimes occurred on January 6, 2015. In March 2015, a Peach
County grand jury indicted Wipfel, Dennis Eason, Jr., Antonio Garvin, Jeremy
Jackson, and Tevin Sams for malice murder, felony murder, aggravated
assault against Anderson’s brother J.A., making terroristic threats against
Dejad Williams, and two counts of possession of a firearm during the
commission of a felony. Garvin and Jackson both pled guilty to two counts of
aggravated assault in exchange for their truthful testimony at trial. Their
cases are not part of this appeal. Wipfel, Eason, and Sams were tried together
from October 31 to November 9, 2016. The jury found Wipfel not guilty of
making terroristic threats, but guilty of the remaining counts. The jury found
Eason and Sams guilty of all counts, except, with respect to Sams, the count of
making terroristic threats. Eason’s case is not part of this appeal, and we
affirmed Sams’s convictions in Sams v. State, 314 Ga. 306 (875 SE2d 757)
(2022). The trial court sentenced Wipfel to serve life in prison without the
possibility of parole for malice murder, 20 concurrent years for aggravated
assault, and five consecutive years for each of the firearm offenses. The trial
court purported to merge the felony-murder count into the malice-murder
conviction, but the felony-murder count was actually vacated by operation of
of error, Wipfel contends that the trial court plainly erred when it

failed to instruct the jury on involuntary manslaughter as a lesser

offense of malice murder. For the reasons explained below, we

affirm.

1. As relevant to Wipfel’s enumeration of error on appeal, the

evidence presented at Wipfel’s trial showed the following. Wipfel,

Dennis Eason, Jr., Tevin Sams, Antonio Garvin, and Garvin’s cousin

Jeremy Jackson were together on the night of January 5, 2015.

law. See Malcolm v. State, 263 Ga. 369, 371-372 (434 SE2d 479) (1993).
Wipfel filed a timely motion for new trial, which he later amended through
counsel. After an evidentiary hearing in May 2021, the trial court entered an
order denying the motion on February 10, 2022.
On May 3, 2022, Wipfel filed a motion to set aside the February 10, 2022
order on the ground that he was not timely notified of its entry, and on May
20, 2022, Wipfel filed a notice of appeal. On May 31, 2022, the trial court
entered an order setting aside and re-entering the February 10, 2022 order.
On April 19, 2023, this Court vacated the trial court’s May 31, 2022 order and
dismissed Wipfel’s appeal on the ground that the May 31 order was filed after
the notice of appeal divested the trial court of jurisdiction, such that the May
31 order was a nullity, and Wipfel’s notice of appeal was not timely filed from
the date of the entry of the original order on the motion for new trial on
February 10, 2022. We noted, however, that because Wipfel did not receive
timely notice of the February 10, 2022 order, he could file another motion to
set aside that order. See Cambron v. Canal Ins. Co., 246 Ga. 147, 148-149 (1)
(269 SE2d 426) (1980). On April 24, 2023, Wipfel filed such a motion. Nearly
10 months later, on February 7, 2024, the trial court entered an order setting
aside the February 10, 2022 order and re-entering it. Wipfel then filed a
timely notice of appeal, and the case was docketed to the April 2024 term of
this Court and submitted for a decision on the briefs.
2
Eason was a drug dealer, and Wipfel sold drugs on his behalf. Eason

was involved in a dispute over drugs and money with Dejad

Williams, who lived with his girlfriend and her sons, eight-year-old

Anderson and six-year-old J.A., in an apartment in Fort Valley.