SUPREME COURT OF GEORGIA

Case No. S19M0969

Atlanta, March 28, 2019

The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

RYAN ALEXANDER DUKE v. THE STATE

These emergency motions arise from the trial court’s order, entered in
Duke’s pending murder prosecution, overruling Duke’s motion below for state
funding for an investigator and defense experts. As Duke acknowledges, he
attempted to pursue an interlocutory appeal of this order via the procedures set
forth in OCGA § 5-6-34 (b), but the trial court did not grant his request for a
certificate of immediate review. Thus, Duke seeks to have this Court exercise
discretion pursuant to Waldrip v. Head, 272 Ga. 572, 574-577 (1) (532 SE2d
380) (2000), to “bypass the statutory requirements for interlocutory review and
address the substantive issues raised on appeal.” Duke argues that the merits
of his appeal constitute an “exceptional case[] that involve[s] an issue of great
concern, gravity, and importance to the public and no timely opportunity for
appellate review” and that the exercise of this Court’s discretion in granting
his appeal is therefore warranted. Waldrip, 272 Ga. at 575 (1). Duke also seeks
supersedeas and stay of the pre-trial and trial proceedings below pending this
Court’s consideration of this case.

The merits of Duke’s motions in the trial court (and his application for
appeal in this Court) requesting public funding for expert witnesses and
investigators raise difficult and important issues for which there does not
appear to be controlling legal precedent. Pursuant to our Rule 31, an
interlocutory appeal may be warranted when it involves a case-dispositive
question, the apparent presence of error likely to cause substantial error at trial,
or the opportunity to establish needed precedent. With these standards in mind,
in concert with the “exceptional case” standard regarding “an issue of great
concern, gravity, and importance to the public and no timely opportunity for
appellate review” articulated in Waldrip, the issues raised by Duke arguably
meet the standard for granting an interlocutory appeal under Waldrip.
However, the dissenters in Waldrip and numerous subsequent litigants have
called into question the validity of Waldrip’s core holding, and some members
of the Court have similar concerns.

In light of the foregoing, Duke’s emergency motion for interlocutory

appeal pursuant to Waldrip shall be held in abeyance, and the parties are
directed to file briefs addressing the following question:

Whether Waldrip v. Head, 272 Ga. 572, 574-577 (1) (532 SE2d
380) (2000), which held that the Court has discretion to entertain
an interlocutory appeal in the absence of a certificate of immediate
review from the trial court, should be overruled.

It is ordered that Duke’s briefs will be due in this Court within 10 days
of the date of this order; the State’s briefs will be due within 20 days of the
date of this order, or within 10 days of the filing of Duke’s briefs, whichever
is later. The briefs should be limited to the question set forth above. It is further
ordered that this case be placed on the oral argument calendar for hearing on
Tuesday, May 7, 2019, during the morning session. An oral argument calendar
will issue at least 20 days before the scheduled oral argument date. Duke’s
request for supersedeas and stay of all pre-trial and trial proceedings in the
court below is granted, pending this Court’s decision regarding the validity of
Waldrip and, thus, the Court’s jurisdiction to consider the merits of Duke’s
motion for interlocutory appeal in the absence of a timely certificate of
immediate review.

All the Justices concur, except Melton, C.J., and Boggs and Ellington, J.J., who
dissent.
SUPREME COURT OF THE STATE OF GEORGIA

Clerk’s Office, Atlanta

I certify that the above is a true extract from the

minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.