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
Beasley, Judge,
dissenting.
I respectfully dissent because OCGA § 5-6-35 (a). (7) is not involved. It requires that an application in the nature of a petition for permission to appeal (subsection (b)) be filed in cases in which a party desires to appeal from the denial of an extraordinary motion for new trial when separate from the original appeal. Balkcom’s appeal is from the judgment of conviction entered September 16, 1994, and the order denying his amended motion for new trial entered September 13, 1996. The notice of appeal was filed within 30 days of the latter event, and Balkcom’s court-appointed attorney filed an affidavit of poverty on his behalf in order to pursue the appeal.
Balkcom has been trying to get an appeal since January 1995 when, four months after his conviction, he filed pro se a motion for out-of-time appeal, explaining that it was not filed by counsel earlier because he could not pay her fee. Two months later, before that motion was acted on, Balkcom pro se filed a pleading which he entitled a “Motion for New Trial” and “Extraordinary Motion for New Trial.” He asserted the general grounds, plus ineffective assistance of counsel and voidness of the indictment on its face. The contents of the pleading determine its nature. It set out grounds appropriate to a motion for new trial, not an extraordinary motion. Goodwin v. State, 240 Ga. 605 ( 242 SE2d 119 ) (1978); Douthit v. State, 244 Ga. 471 ( 260 SE2d 875 ) (1979); Gaddis v. State, 245 Ga. 200 ( 265 SE2d 275 ) (1980). Balkcom also sought a copy of the record and transcript by a motion, but no action was taken by the court on either motion so he attempted to appeal the lack of a ruling. Nothing occurred, so he *334 moved for appointment of counsel in September 1995, and again in November, together with a supporting brief in each instance.
The court eventually did appoint counsel, who entered an appearance on February 23, 1996. After the trial transcript was filed by the court reporter in June, counsel filed an “Amended Motion for New Trial” and argument and citation of authority in support of it on August 1. The motion was based on the general grounds, sought a hearing, and prayed for a new trial.
In light of this, a few days later the court ordered that Balkcom’s custodians return him to court for disposition of what the order referred to as the “Motion for New Trial.” Hearings are required on motions for new trial but not on extraordinary motions which fail to show any merit. Dick v. State, 248 Ga. 898, 899 (1) ( 287 SE2d 11 ) (1982). A hearing was held on August 26, and the court entered a denial of the motion on September 13, although it inartfully and inaccurately referred to the matter as a “Motion for Extraordinary Motion for New Trial”; such does not exist in legal procedure and was not attempted by Balkcom. Considering the grounds that were raised, it was an ordinary motion for new trial, as counsel had styled it and as the cases cited above hold. The amended motion raised only the general grounds, and it is evident that the court did not consider the aborted and inappropriate “extraordinary” motion which Balkcom had filed pro se in March 1995, because the court expressly noted that defendant did not file an allegation of ineffective assistance of counsel and ruled that any such allegation would be merit-less. The March motion had asserted that ground. It is from the order denying the amended motion and from the conviction that Balkcom appeals.
Balkcom is properly before this Court on a direct appeal. The events which transpired below, and particularly the actions taken by the trial court, demonstrate that the court treated the amended motion as one which met the requirement for consideration on the merits despite its untimeliness. OCGA § 5-5-41 (a) provides: “When a motion for a new trial is made after the expiration of a 30 day period from the entry of judgment, some good reason must be shown why the motion was not made during such period, which reason shall be judged by the court.” Appointing counsel long after the 30-day period following judgment, acknowledging the viability of counsel’s motion for new trial by having defendant brought back to court from prison, setting and holding a hearing, and denying the motion after considering not only its grounds but also one raised by the court, all demonstrate that the trial court permitted an out-of-time motion for new trial. That is authorized by OCGA § 5-5-41 (a), as judicially con *335 strued. Bohannon v. State, 262 Ga. 697 ( 425 SE2d 653 ) (1993). 1
Decided July 15, 1997.
William D. Phillips, for appellant.
Charles H. Weston, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.
Balkcom’s appeal, initially sought in January 1995 and never abandoned, should be considered on its merits and decided.
I am authorized to state that Presiding Judge McMurray joins in this dissent.
Bohannon v. State (concurred in by six justices) appears to contradict OCGA §§ 5-5-41 (b), 5-5-40 (a), and 5-6-39 (b), which contemplate that motions for new trial must be filed within 30 days of judgment, that no extension of time shall be granted, and that late motions for new trial are considered as a matter of law to be extraordinary motions for new trial. As stated by the Supreme Court in an earlier decision concurred in by all the justices, “there is a distinction between a motion for new trial and an extraordinary motion for new trial. A motion for new trial is one made ‘within 30 days of the entry of the judgment on the verdict, or entry of the judgment where the case was tried without a jury.’ [OCGA § 5-5-40.] An extraordinary motion for new trial is one made after the time for filing a motion for new trial has expired. See [OCGA §§ 5-5-40; 5-5-41].” (Footnote omitted.) Dick v. State, supra at 898-899 (1). See Gibbs v. State, 213 Ga. App. 117 ( 443 SE2d 708 ) (1994); Hooks v. State, 210 Ga. App. 171, 172 ( 435 SE2d 617 ) (1993); King v. State, 208 Ga. App. 77, 82 ( 430 SE2d 640 ) (1993) (Beasley, P. J., concurring specially), overruled on other grounds, Glover v. State, 266 Ga. 183 ( 465 SE2d 659 ) (1996). We are bound to follow Bohannon, supra, which allows a motion for new trial on general grounds to be filed late and not be considered an extraordinary motion for new trial, if the trial court is satisfied of good reason for the delay and grants leave to do so.