Moore v. State ( 1977 )

239 Ga. 67 (1977) 235 S.E.2d 519

MOORE
v.
THE STATE.

32138.

Supreme Court of Georgia.

Argued April 11, 1977. Decided May 13, 1977. Rehearing Denied May 26, 1977.

Pierce & House, Hinton R. Pierce, for appellant.

H. Reginald Thompson, District Attorney, Arthur K. Bolton, Attorney General, for appellee.

UNDERCOFLER, Presiding Justice.

Appellant was sentenced to death on July 17, 1974, following guilty pleas to charges of murder and armed robbery. This court affirmed. Moore v. State, 233 Ga. 861 (213 SE2d 829) (1975), cert. den. 428 U. S. 910 (1976).

This appeal is from the denial of a petition and motion to grant appellant a new trial on the issue of sentence by virtue of the court's general equitable powers and authority to enter declaratory judgments. Appellant argues that at the time of his death sentence the trial judge may not have imposed it except for a mistaken belief that such sentence would never be upheld by the U. S. Supreme Court. We affirm. Petitions and motions of the nature presented here are not maintainable.

"Our existing post conviction relief procedures are available to provide justice." Ross v. State, 238 Ga. 445 (233 SE2d 381) (1977); Smith v. State, 238 Ga. 655 (1977).

Ancillary to the case under review appellant has filed in this court a motion to order the trial court to hold a hearing to determine whether or not the trial judge imposed the death sentence, at least in part, on the basis of information which the appellant has no opportunity to deny or explain. See Gardner v. Florida, ___ U. S. ___ (97 SC 1197, 51 LE2d 393) (1977). As stated above our existing post conviction proceedings are available to provide justice. The motion in this court is denied without prejudice.

Judgment affirmed. All the Justices concur.