Shockley v. State , 230 Ga. 869 ( 1973 )

230 Ga. 869 (1973) 199 S.E.2d 791

SHOCKLEY
v.
THE STATE.

28027.

Supreme Court of Georgia.

Submitted June 22, 1973. Decided September 5, 1973.

Hester & Hester, Frank B. Hester, Richard M. Hester, for appellant.

Lewis R. Slaton, District Attorney, Dennis S. Mackin, James H. Mobley, Jr., Morris H. Rosenberg, Arthur K. Bolton, Attorney General, Courtney Wilder Stanton, Daniel I. MacIntyre, IV, Assistant Attorneys General, for appellee.

JORDAN, Justice.

This is an appeal from an order by a trial judge who did not preside at the trial, the presiding judge no longer being in office, which reads as follows: "The motion for new trial in the above styled case having been considered by me without hearing, it is hereby ordered and adjudged that the motion for new trial is overruled on each and every ground thereof." The motion, limited to the usual general grounds, is accompanied by a rule nisi and supersedeas. See Code § 24-2619. Service on behalf of the State of Georgia is acknowledged. The sole enumeration of error attacks the order on the premises that the judge erred in overruling the motion without holding a hearing.

Our statutes are replete with statements such as "hear and determine ... all motions for new trial" (Code § 24-2618) and "until the motion for a new trial is heard and decided" (Code § 70-308) as well as the language of Code Ann. § 70-301 which clearly import that a movant for new trial is entitled to a hearing, and these statements are consonant with the constitutional requirements for procedural due process. Having invoked the motion for new trial procedure instead of direct appeal the defendant is entitled to be heard on his motion in the trial court before a ruling is made thereon.

Judgment reversed. All the Justices concur.