Graves v. State , 116 Ga. App. 19 ( 1967 )

116 Ga. App. 19 (1967) 156 S.E.2d 205

GRAVES
v.
THE STATE.

42835.

Court of Appeals of Georgia.

Submitted June 12, 1967. Decided June 16, 1967.

Mitchell & Mitchell, Warren N. Coppedge, Jr., for appellant.

PANNELL, Judge.

The defendant was charged, tried and convicted of the offense of possessing and transporting intoxicating liquor contrary to the law, and sentence was entered on March 23, 1966. On April 1, 1966, a rule nisi issued on a motion for new trial filed by the defendant setting the motion for hearing on May 2, 1966. The record does not disclose that this motion has been passed upon. On the 14th day of April, 1966, a notice of appeal was filed from the sentence entered on March 23, 1966. The transcript of evidence, including the charge of the court, was filed in the office of the clerk of the lower court on March 28, 1967. The record and transcript were filed in the appellate court on April 12, 1967. Held:

The notice of appeal having been filed while motion for new trial was pending the appeal was prematurely made and must be dismissed (Kurtz v. State, 115 Ga. App. 665 (1)), and even if the motion for new trial was overruled prior to the filing of the notice of appeal, still the appeal must be dismissed, for the reason that the transcript of evidence was not filed in the office of the clerk of the lower court within thirty days of the filing of the notice of appeal and, in the absence of the proper orders extending the time for filing said transcript, the appeal must be dismissed. Davis v. Davis, 222 Ga. 579 (151 SE2d 123); Kurtz v. State, supra.

Appeal dismissed. Bell, P. J., and Joslin, J., concur.