appointing new counsel, bringing appellant back to court from prison, setting and holding a hearing, and denying the motion on the merits, all demonstrated that the trial court permitted an out-of-time motion for new trial
How later courts described this case
- appointing new counsel, bringing appellant back to court from prison, setting and holding a hearing, and denying the motion on the merits, all demonstrated that the trial court permitted an out-of-time motion for new trial
- on appeal, criminal appellant conceded that his motion for new trial was an extraordinary one
- where the trial court did not grant leave to file an out-of-time motion for new trial, the pleading is treated as an extraordinary motion for new trial, the appeal of the denial of which must come by application under OCGA § 5-6-35 (a) (7)
- dismissing appeal from denial of extraordinary motion for new trial
Written by the judges who cited it.
The opinion
POPE, Presiding Judge,
concurring specially.
Under OCGA § 5-5-41 (b), any out-of-time motion for new trial must be an extraordinary motion for new trial; under OCGA § 5-6-35 (a) (7), any appeal from the denial of an extraordinary motion for new trial must be by application. Thus, it would appear from the statutes alone that the denial of any out-of-time motion for new trial would have to be appealed by application.
Yet in Bohannon v. State, 262 Ga. 697 ( 425 SE2d 653 ) (1993), the Supreme Court held that when a trial court granted a party permission to file an out-of-time new trial motion and then denied the motion on the merits, it was effectively granting an out-of-time appeal; so its denial of the motion on the merits was appealable without application.
In this case, it does not appear from the record that defendant sought and obtained permission to file an out-of-time appeal. Accordingly, this case is not controlled by Bohannon , and I agree with the majority that defendant’s failure to file an application must result in dismissal of his appeal.
In Walls v. State, 204 Ga. App. 348 ( 419 SE2d 344 ) (1992), and in her dissent here, Judge Beasley expresses the view that an application is unnecessary because the appeal from the denial of the out-of-time new trial motion cannot be “separate from an original appeal” *333 when there was no original appeal. See OCGA § 5-6-35 (a) (7) (applications are required in “[ajppeals, when separate from an original appeal, from the denial of an extraordinary motion for new trial”). But the clause she relies on is simply a specific application of OCGA § 5-6-34 (d), allowing a direct appeal from the denial of an extraordinary motion for new trial when it can be addressed within the context of an existing appeal from an already appealable order. Language and logic dictate that an appeal from the denial of an extraordinary motion for new trial is in fact “separate from an original appeal” whenever there is no original appeal in the case.
Nonetheless, Walls need not be overruled, because like the defendant in Bohannon , the defendánt in Walls sought and obtained permission to file an out-of-time motion for new trial. 204 Ga. App. at 348 . The specific language indicating that an application was not necessary because the appeal was not separate from the original appeal should be disapproved however.
I am authorized to state that Judge Smith joins in this special concurrence.