☢ test - Í
evidence, see OCGA §§ 5–5–20 and 5–5–21 (the general grounds), and some grounds that do or may require new evidence, see OCGA § 5–5–23 (saying that a new trial may be granted based on newly discovered evidence); OCGA § 5– 5–25 (saying that ‘[i]n all motions for a new trial on other grounds not provided for in this Code, the presiding judge must exercise a sound legal discretion in granting or refusing the same according to the provisions of the common law and practice of the courts’); State v. Reynolds, 332 Ga.App. 818, 820, 775 S.E.2d 187 (2015) (explaining that a claim of ineffective assistance of counsel—which may involve the introduction of evidence not heard by the jury—is a ground for motion for new trial permitted under § 5–5–25). In view of these various grounds for a motion for new trial and because OCGA § 5–5–40 says that a motion for new trial ‘may be heard at any time’ (and not that the grounds that may or do require new evidence must be heard after a hearing and ruling on the general grounds), we decline to adopt a rule that requires trial courts to hold multiple hearings on motions for new trial.” 2. “ To the extent that the State argues that the trial court erred in granting a new trial on the general grounds based on its consideration of the evidence introduced at the motion for new trial hearing that was not heard by the jury, the record does not show that the trial court relied on that evidence.” 3. No abuse of discretion in granting motion, based on conflicts in the evidence. State v. Jackson, 295 Ga. 825, 764 S.E.2d 395 (October 6, 2014). Following defendant’s convictions for murder and related offenses, he moved for new trial on grounds of insufficiency of evidence. Trial court granted the motion, but Supreme Court reversed, 294 Ga. 9 (748 S.E.2d 902) (2013). Two days after the remittitur was filed in superior court, defendant filed a motion asking the trial judge to act as “thirteenth juror” pursuant to OCGA §§ 5-5–20 and 5–5–21 – grounds which were stated in the original new trial motion but abandoned. Held, “[u]pon remittitur of an appellate court decision to the trial court, ‘[t]he decision and direction shall be respected and carried into full effect in good faith by the court below.’ OCGA § 5–6–10. … By reversing the trial court's order granting new trial on the sole ground ultimately pursued by Jackson, this Court's previous opinion effectively held that the trial court should have denied the motion for new trial. All pending issues were thereby resolved and no further disposition of the case by the trial court was authorized.[fn] … Afterwards, the lower court had no jurisdiction to entertain a newly filed motion for new trial seeking to assert grounds that Jackson had affirmatively waived and abandoned.[fn] … It was too late, post-remittitur, for Jackson to secure a new trial on grounds that were not preserved in the motion that was the subject of the earlier appeal. Just as a criminal defendant may not attack his conviction piecemeal by filing successive appeals from the conviction (see Grant v. State, 159 Ga.App. 2, 3 (282 S.E.2d 668) (1981)), likewise, a defendant may not file successive motions for new trial on grounds not previously raised where, as here, the trial court's grant of his motion for new trial was reversed, thus making the conviction a final judgment.” Barlow v. State, 327 Ga.App. 719, 761 S.E.2d 120 (June 24, 2014). Convictions for “multiple drug-related offenses” affirmed; no harm shown where trial court refused to allow defendant to be present for hearing on motion for new trial . Counsel contended that defendant needed to be present to testify about ineffective assistance of trial counsel; but upon hearing counsel’s proffer of defendant’s testimony, trial court noted that it contradicted defendant’s prior testimony at trial and at motion to suppress hearing, and thus lacked credibility. “Generally, a criminal defendant does not have a constitutional right to be present at the hearing on his motion for new trial. See Rosser v. State, 284 Ga. 335, 336(2), 667 S.E.2d 62 (2008); Mantooth v. State, 303 Ga.App. 330, 336(2), 693 S.E.2d 587 (2010). ‘Rather, due process affords him the right to be present at such a hearing only if his presence would contribute to the fairness of the procedure.’ (Citation, punctuation, and footnote omitted.) Mantooth, 303 Ga.App. at 336(2), 693 S.E.2d 587. See Wallace v. State, 294 Ga.App. 159, 161(2), 669 S.E.2d 400 (2008).” Goodwin v. State, 320 Ga.App. 224, 739 S.E.2d 712 (March 11, 2013). Child molestation and related convictions affirmed. No error where trial court prohibited defendant from calling trial prosecutor as a witness at hearing on motion for new trial. “‘The practice of trial attorneys testifying is not approved by the courts except where made necessary by the circumstances of the case.’ Timberlake v. State, 246 Ga. 488, 500(7) (271 S.E.2d 792) (1980). ‘[T]he advocate as a witness poses innumerable threats to the integrity and reliability of the judicial process.’ Castell v. Kemp, 254 Ga. 556, 557 (331 S.E.2d 528) (1985). ‘[C]ourts have properly refused to permit a prosecutor to be called as a defense witness unless there is a compelling need.’ (Citations and punctuation omitted.) Roberson v. United States, 897 F.2d 1092, 1098(IV)(F) (11 th Cir., 1990). … Here, the circumstances of the case did not make it necessary for the prosecuting attorney to testify on the defendant's behalf during the hearing on the motion for new trial. The evidence sought was available through other means and eventually obtained by Goodwin. Accordingly, we find no error.” Gomez-Oliva v. State, 312 Ga.App. 105, 717 S.E.2d 689 (October 18, 2011). Conviction for attempted rape affirmed; 1. motion for new trial filed before “prior to the entry of the judgment on the verdict, it was premature and invalid. See Lipscomb v. State, 194 Ga.App. 657, 657(1) (391 S.E.2d 773) (1990); see also Harrison v. Harrison, 229 Ga. 692,
Made with FlippingBook Ebook Creator