☢ test - Í

Martin v. State, 266 Ga.App. 190, 596 S.E.2d 705 (March 10, 2004). “ One who has entered a plea of guilty cannot move for a new trial, as there was no trial,” quoting Davis v. State , 274 Ga. 865, 865-866, 561 S.E.2d 119 (2002). Accord, Williams v. State , 278 Ga.App. 42, 628 S.E.2d 128 (March 7, 2006); Murell v. Young , 285 Ga. 182, 674 S.E.2d 890 (March 23, 2009) (defendant not entitled to appointment of counsel on extraordinary motion for new trial after entry of guilty plea); Valldeparas v. State , 319 Ga.App. 491, 735 S.E.2d 816 (December 21, 2012); Jones v. State , 322 Ga.App. 269, 745 S.E.2d 1 (June 17, 2013); Garza v. State , 325 Ga.App. 505, 753 S.E.2d 651 (January 8, 2014); Smith v. State , 298 Ga. 487, 782 S.E.2d 17 (January 19, 2016). Gilbert v. State, 265 Ga.App. 76, 593 S.E.2d 25 (December 16, 2003). “[E]vidence that three law enforcement officers who testified at trial were suspended from work because they had received illegal satellite television services” was not grounds for new trial because it was merely impeaching of witness credibility, and would not have been admissible for that purpose anyway, as “specific instances of misconduct can not be used to impeach a witness’ credibility unless the misconduct has resulted in a criminal conviction.” Spradlin v State, 262 Ga.App. 897, 587 S.E.2d 155 (August 27, 2003). Applies Barker v. Wingo constitutional speedy trial deprivation analysis to defendant’s claim of denial of due process for trial court’s failure to consider motion for new trial for 13 years while defendant served time in state prison. Finds three of four criteria (excessive delay, not caused by defendant, defendant’s assertion of his rights) satisfied (including considering the inattentive public defender to be a State agent for purposes of this analysis), but not the last – prejudice to defendant. “Spradlin contends that he has been prejudiced because the victim, who, he represents, has recanted his testimony and moved to another state.... The fact that the victim currently resides outside of Georgia, standing alone, neither prevents Spradlin from presenting an adequate appeal or impairs a defense which would otherwise be available to him.” This lack of harm does not prevent a finding of due process violation, however, as “the United States Supreme Court regarded none of the four factors identified in Barker v. Wingo as either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy appeal.” Finds that “Spradlin was not provided effective assistance of appellate counsel,” but concludes that “[u]nder our current system, there is no practical sanction for the failure of the courts to timely dispose of criminal cases.” Affirms denial of motion for new trial. Simmons v. State, 262 Ga.App. 164, 585 S.E.2d 93 (June 17, 2003). “[T]he trial judge has a duty to exercise his discretion when determining whether a new trial is warranted” on the general grounds (verdict contrary to, or against the great weight of, the evidence). “In doing so, the trial judge is permitted to act as a thirteenth juror.” Wells v. State, 236 Ga.App. 607, 512 S.E.2d 711 (February 22, 1999). Trial court erroneously ruled that defendant couldn’t seek review of his probation revocation by motion for new trial. 5. NEWLY DISCOVERED EVIDENCE/CO-DEFENDANT DECLARATIONS/RECANTED TESTIMONY Seminal case: Timberlake v. State , 246 Ga. 488, 271 S.E.2d 792 (1980). See test set out at Ingram (February 10, 2003), below . Bharadia v. State, 297 Ga. 567, 774 S.E.2d 90 (June 29, 2015). Affirming 326 Ga.App. 827, 755 S.E.2d 273 (2014). Following defendant’s conviction for aggravated sodomy and related offenses, trial court properly denied extraordinary motion for new trial; defendant failed to show due diligence in obtaining alleged new evidence. New evidence here: DNA testing and CODIS search for match of that testing, based on biological matter on gloves worn by victim’s assailant. CODIS search matched the biological matter to co-defendant/State’s witness Flint, not Bharadia. “The gloves could have been tested for DNA prior to trial, and once the test results showed the DNA was not a match to Bharadia, he could have requested, prior to trial, the DNA testing of his co-defendant, who admitted to being at the crime scene, to determine if the DNA was a match to him. Instead, Bharadia waited over a year after trial to determine that DNA relevant to the identity of the assailant was on the gloves and that the DNA did not belong to him, and then waited again until almost nine years after trial and almost seven years after his initial motion for new trial proceeding was completed to establish that the DNA was a match to his co-defendant.[fn] His defense at trial was that he was not present at the scene of the crimes, yet Bharadia failed to show that circumstances beyond his control prevented him from seeking and obtaining any and all of this testing and resulting evidence prior to trial. Instead, he avoided the risk that pre-trial DNA test results from the gloves would implicate him in the crimes and waited until after his trial and conviction to request these initial tests, at which time he would have been no worse off by a positive test result than he was before taking the risk of requesting a post-trial DNA test.” Notes that ineffective assistance is not before the court in this appeal. “Even