# State v. Kelly

> Supreme Court of Georgia · November 7, 2011 · 290 Ga. 29

URL: https://www.frixlaw.com/law-library/cases/9781247

## Case

- **Full name:** The State v. Kelly
- **Court:** Supreme Court of Georgia
- **Decided:** November 7, 2011
- **Citations:** 290 Ga. 29; 2011 Fulton County D. Rep. 3440; 718 S.E.2d 232; 2011 Ga. LEXIS 860
- **Precedential status:** Published
- **Opinion:** Concurrence by Hines
- **Judges:** Hunstein, Carley, Hines
- **Cited by:** 533 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9781247

## How later opinions describe it (automated extraction)

- holding 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,” a “construction that is consistent with the plain language of the statute” and “consonant with the analogous statut…
- explaining that under the third prong of the plain-error analysis, “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” (punctuation omitted)
- holding that “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 16 proceedings” (Citation and punctuation omitted)
- holding that unobjected to jury instructions are subject to plain-error review when the defendant subsequently alleges in his motion for a new trial and on appeal that the instruction was erroneous
- explaining that OCGA § 17-8-58 (b) on “plain error” applies to criminal cases while OCGA § 5-5-24 (c) on “substantial error” applies to civil cases

## Opinion text

HINES, Justice,
concurring specially.
Although I agree with the majority opinion as to Divisions 2 and 3,1 cannot join in Division 1. Accordingly, I concur in the judgment to reverse the trial court and remand the case, and concur specially as to Division 1.
The majority states that “under OCGA § 17-8-58 (b), appellate review for plain error is required whenever an appealing party asserts an error in jury instructions.” Maj. op., p. 32. However, OCGA § 17-8-58 (b) reads:
Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court’s attention as provided in subsection (a) of this Code section.
(Emphasis supplied.) The approach the majority takes would be proper if the General Assembly had written only the first sentence of OCGA § 17-8-58 (b), but that body also wrote the second sentence, including the term “may be considered on appeal.” I believe that the language of the second sentence must also be given effect. In my view, reading OCGA § 17-8-58 (b) as a whole reveals a legislative *36 intent that the failure of an appealing party to comply with OCGA § 17-8-58 (a) “shall preclude appellate review” of the portion of the jury instruction challenged, and in order to avoid such legislative bar, the appealing party must properly raise the review that is permitted, i.e., that the omission from, or inclusion of, certain language in the jury instructions constituted plain error. When setting forth the exception to the legislative bar to appellate review, the General Assembly did not state that the issue of plain error “shall” be considered on appeal, but that it “may.”
Decided November 7, 2011.
Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Paige Reese Whitaker, Assistant District Attorneys, for appellant.
Cromwell & Hibbert, Henry A. Hibbert, for appellee.
Kelly has asserted in this Court that an omission from the jury instructions constituted plain error. Thus, the issue is properly presented, and I agree with the majority’s treatment of it.
I am authorized to state that Presiding Justice Carley joins in this special concurrence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9781247. Public record. Not legal advice.